1929701 (Refugee)

1929701 (Refugee) [2022] AATA 3003 (30 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Genevieve Howe
CASE NUMBER:  1929701
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Wendy Banfield
DATE:30 June 2022
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 June 2022 at 6:41pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – LGBTQI – homosexual – fear of societal disapproval, forced counselling and marriage – new claims for protection – inconsistent evidence – evidence of current heterosexual relationship – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 424AA, 424A, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia applied for the visa on 20 August 2019. The delegate refused to grant the visa on the basis that the applicant was not a person in respect to whom Australia has protection obligation under s 36(2)(a) and s 36(2)(aa) of the Act.
The applicant was invited to attend a hearing by telephone on 21 April 2022, however the applicant did not agree to a hearing by phone or video link and requested to attend in person. The Tribunal agreed to the request and rescheduled the hearing. The applicant was invited to attend the Canberra registry of the Tribunal.
The applicant appeared before the Tribunal on 10 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from witnesses [Ms A] and [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Criteria for a protection visa
Refugee criteria
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.
Complementary protection criteria
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), 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.
Applicant’s identity and country of reference
The applicant stated in her application for a protection visa that she was born on [date] in Malaysia. The applicant provided a copy of her Malaysian passport to the Department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant's identity.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country.
Based on the document provided by the applicant and accepted by the Department, the Tribunal finds that she is a citizen of Malaysia and as such her protection claim will be assessed against Malaysia as the country of reference and 'receiving country' respectively.
Migration History
The applicant arrived in Australia on [date] June 2019 holding an Electronic Travel Authority (ETA) and has not departed since.
Claims for protection and supporting documentation
The applicant submitted her claims for protection when she made an application to the Department on 20 August 2019. The applicant submitted a copy of the Department’s decision to the Tribunal. Her claims were summarised in the decision record as follows:
·They met and fell in love with a man named [Mr C], when they worked in a factory in Alor Setar.
·They told their parents they wanted to marry [Mr C]; they were furious as they wanted them to marry a cousin instead.
·When they told their parents they love [Mr C], they were threatened to end the relationship, but they continued.
·Their parents found out and went to [Mr C]’s workplace and threatened to kill him if he continued his relationship with them. On [date] June 2019 they flew to Australia to run away from their family.
·They did not seek help in Malaysia as they were too scared, as their lives had been threatened. They do not believe the police could protect them all of the time.
·They could not relocate to another part of the country because they were too scared due to the threat to their lives. They did not think they would be safe even after moving to another part of the country.
·If they return to Malaysia, they fear [Mr C] will be killed by their family.
Evidence submitted in support of the application for review
·     Department of Home Affairs notification letter and decision record dated 17 October 2019.
·     Email from [a legal service] dated 18 April 2022.
·     Email from the applicant’s representative, Genevieve Howe of Refugee Advice and Casework Service dated 10 May 2022 attaching five photos.
·     Email dated 16 June 2022 from the applicant’s representative in response to the Tribunal’s invitation to comment or respond to information attaching further evidence as follows:
oPost hearing submission dated 16 June 2022.
oStatutory declaration of the applicant dated 14 June 2022.
oSupport letter and identification of [a named person] dated 24 May 2022.
oSupport letter and identification of [a named person] dated 25 May 2022.
oTranslated text messages.
oPhotos.
oStatement of [Ms A] dated 6 June 2022 in support of her claims for protection.
oMaterial downloaded from [Social Media 1] depicting the applicant and [Ms A].
Evidence at the hearing
The Tribunal asked the applicant about her original application for a Protection visa on 20 August 2019. The applicant claimed she had assistance to make the application, but she did not know who it was. She said she was introduced by a friend, but she did not know their name or background. The applicant said they did not meet in person; she just received the contact details from a friend and was asked for her passport details and information. The Tribunal asked why she trusted an unknown person to do this for her. The applicant said it was because her friend had used their services before, and she went along with it. The applicant said the friend is still in [Town 1], but when asked she denied the assistance was provided by an employer. The applicant was asked why she moved to a regional area. She said she likes living there because she feels comfortable and is not stressed. The applicant also claimed she had friends there.
The applicant was asked to explain why the person she says completed the application for her had not included what she says are her true claims. The applicant said she had originally provided her information and was not sure if the claims were mixed up. She said she had never met the agent and does not know any more about it. The Tribunal asked why the application would have included claims that she had been in a relationship with a man in Malaysia that her parents did not approve of. The applicant said she does not know why. She claimed she had told the person about her sexual identity; that she likes girls and that her family in Malaysia do not accept it. The applicant said she gave the information in writing to a Malay speaking person through WhatsApp. The applicant said she no longer has the information because she changed her phone number. She confirmed she still has WhatsApp but said she does not think she saved anything.
The applicant confirmed her country of citizenship is Malaysia and she is not a citizen of any other country. The applicant is from Kedah in Malaysia and has parents, a younger brother aged [age] and a younger sister aged [age] in Malaysia. The applicant said she lived with them before she came to Australia and had not lived anywhere else, except for the time she lived with her “ex”. Regarding her parent’s employment, her mother is a housewife, and her father works on a rubber plantation. Her brother works and her sister is at home waiting to continue her studies. The family are Buddhist. The applicant said she maintains contact with them but when they started asking her about having a boyfriend or meeting a man she stopped. The applicant clarified that she did not stop contacting her family but just turned her phone off.
The applicant does not have family in Australia. She completed secondary school in Malaysia then a three-year [Diploma] in June [year]. The applicant said she worked for three months as an office assistant for a [company]. She then worked selling and promoting [Product 1] for two months before coming to Australia.
The applicant said she lived with her parents except when she lived with a partner, a woman named [Ms D]. The applicant claimed the relationship began when she was 18 and continued until she was 21. The applicant said she lived with her partner on the college campus. She said that was the only relationship she had in Malaysia. The applicant said her parents knew about it but were against it. The applicant stated the relationship broke up after her partner reconnected with an ex. The Tribunal asked if the applicant ever had a boyfriend. She said she had male friends but did not have a boyfriend in Malaysia or Australia. The applicant advised her parents do not know about her relationship in Australia.
Regarding her arrival in Australia as a visitor, the applicant said she knew Australia would accept her sexual identity and she wanted to live here for a while to see how she liked it. She was introduced to someone who could help her with a protection visa. The Tribunal asked why the applicant waited for two months to apply. She said she was getting some money together to apply for a visa by cooking food and selling it. When asked if she was planning to stay in Australia the applicant said she wanted to stay long term because people are open about sexuality. The applicant confirmed she is living in [Town 1] and rents a house with her two witnesses. She said her friend has lived with her for more than a year while her partner came in January this year. The applicant claimed her relationship with her partner had started in January of this year as well. She said they met at their workplace, a [factory], in July 2021. The Tribunal asked when [Ms A] came to Australia and the applicant said it was around October 2019.
The applicant was asked about her fears of returning to Malaysia. The applicant said if she goes back to Malaysia, she cannot be someone who likes girls. She said she is also scared of society because of the cruelty she would face, and there is a department that would act against her. She said she is worried she would have to go for counselling. The applicant said if she was to go back to Malaysia and she was taken for counselling, there is no one that can help her. The applicant said she is also afraid of her family not accepting her sexual identity.
The applicant was asked about her previous experiences that made her fear returning to Malaysia. She said that when she was with [Ms D], they liked to go to shopping malls and would hold hands and kiss, but it was not considered normal in society. She said they would be questioned by the community who would say it was disgusting for her to be with a girl. The applicant said they would be yelled at and called names. The Tribunal put to the applicant that since Malaysia is a conservative country, most people would not demonstrate their affection in public. She was asked why she would not have been more discreet. The applicant replied that having to hide something is torture.
The applicant was asked about her relationship with her parents given their disapproval of her lifestyle. The applicant said they have a pretty good relationship except that they cannot accept that she likes girls. She said they are worried their daughter turned out this way and they want her to marry a man. It was claimed her parents have said they will find one for her. The applicant alleged her parents have tried previously but because she had left home and was with her girlfriend, she did not go home. She was asked when this occurred, and what her parents did. The applicant at first said she does not remember, then stated she was at home and was aged about 19 or 20. According to the applicant “he” brought his mother with him to get to know her and afterwards she asked her own mother why she would do that. She said she asked her parents why they did not accept her. The applicant claimed that in Malaysia no one can help her. The applicant said she never saw the person again. The Tribunal asked the applicant how she will manage her relationship with her parents if she plans to continue in a relationship with [Ms A]. The applicant claimed she does not know as she has not told them, but she will try to and ask them to accept her identity. However, she does not think they can, and if she goes home, they will force her to marry a man.
The Tribunal asked the applicant, apart from her parents, what she feared about returning to Malaysia. The applicant said she was concerned she would be locked up or taken to counselling to make her normal. She claimed she had been locked up before, by her mother during a semester break from college. Regarding travelling to Australia, the applicant said she told her parents she was going on holiday to Thailand with friends but not that she was coming to Australia alone. The applicant said when she told her parents she was in Australia they were shocked initially, but told her that since she was there, she might as well find herself a man. The applicant said that while in Australia, she had used up her money and had to work to set herself up and apply for protection. The applicant agreed that at the time she was holding a visitor visa which did not allow her to work. She was asked if she found out about working in [Town 1] while in Malaysia, but the applicant denied this. She confirmed she had worked in factories, in [Town 2] and in [Town 1].
The applicant was asked if she considered the authorities in Malaysia would protect her from persecution. She said they would not because they do not agree with LGBTQ people. She claimed she would not be able to live anywhere else in Malaysia because it is a Muslim country and there is nowhere to be open. She was asked if there were any other reasons for her to be fearful of returning to Malaysia. The applicant repeated that she could be taken for counselling and there would be no one who could help her.
The applicant was asked about the photos she submitted in support of her application. It was put to her that most of the photos are of her and [Ms A], as well as some other people, but primarily there are just the two of them in social settings along with friends. She was asked how the photos demonstrate that the two of them are in a relationship. The applicant said the posts from [Social Media 1] need to be clicked on because they have a story. The applicant referred the Tribunal to her [Social Media 1] page that includes her partner’s name. The Tribunal put to the applicant that there were not many posts and they appear to be quite recent. The applicant said the pictures were only on her “story highlights” at the time because they were in the process of making the page more attractive.
The Tribunal advised the applicant it would be putting information to her for comment and explained the process to her. The applicant was shown printouts from a [Social Media 2] page and was asked to confirm if it was hers. The applicant confirmed it was hers. The Tribunal put to her that there were numerous photos of her with various other young people which did not focus on herself and [Ms A] in particular. The Tribunal advised it was concerned the applicant’s [Social Media 1] pages that featured just her and [Ms A] may have been created to give the appearance of a relationship which was not evident on [Social Media 2].
The Tribunal then asked the applicant about posts on her [Social Media 2] page beginning in 2019 featuring a young man identified as [Mr E]. The applicant said he is a person interested in her. The applicant claimed they had gone out but as friends. The Tribunal asked the applicant about her relationship with him since there are messages, photos, and video compilations on [Social Media 2] in which he appears to be her boyfriend. The Tribunal showed the applicant a printed sample of the posts for comment. The applicant said she tried to see how it would go but it did not last long because he is a man. The Tribunal put to her that there are posts between 2019 and the present that indicate an intimate relationship, including messages about missing him and wanting to be with him. The applicant said she was in Australia at the time, and he said he would accompany her. The applicant then claimed she did not think she posted some of the things, because [Mr E] had her account as well. The Tribunal referred the applicant to her messages and heart posts and she confirmed she did post those.

The Tribunal put to the applicant that her credibility may be at issue because she is claiming to be in a same-sex relationship with [Ms A] but appears to have had a long relationship with a young man. The applicant said she put the pictures up because he is a man and her parents would see, but she cannot do that with [Ms A]. The applicant indicated he was a good friend and someone she had cared for and loved but never thought it would work out with because she did not feel that way about him. The Tribunal put to the applicant that her failure to state her current claims in her original application, and what appears to be a relationship with a young man, may affect her credibility. It was also put to her that she may have made her currently claims about being in a same-sex relationship because it is more likely to be successful. The applicant responded by saying she did not know [Mr E] would still be on her [Social Media 2] account. The applicant pointed out they were not from 2022 because she has not been using [Social Media 2] recently. The applicant denied she is now in a relationship with the young man. She said he asked her numerous times, but she always rejected him, however, they were more than friends because she “wanted to try it”. The applicant said this was before she met [Ms A]. The Tribunal asked the applicant about the photos and video compilations that appear to be quite intimate. The applicant agreed but said it was done to conceal her interest in girls from her family.
Evidence of the witness – [Ms A]
[Ms A] stated she has been in a relationship with the applicant since January 2022. It was claimed they first met in July 2021 at the [factory] where they worked. [Ms A] confirmed she is a citizen of Malaysia and came to Australia on [date] October 2019. She lives in [Town 1] with the applicant and the witness [Ms B]. The Tribunal asked who else knows about their relationship and she said colleagues she works with. [Ms A] said her family does not know about them and nor do the applicant’s family. The witness said she thought the applicant came to Australia in June 2019. She was not sure if it was the applicant’s first relationship in Australia and advised she had known about the relationship with [Ms D], her ex-girlfriend. She did not know if the applicant’s family knew about that relationship. [Ms A] did not know what family members the applicant has in Malaysia. She said the applicant told her she does keep in touch with them.
The witness was asked if she knows anything about the applicant’s life back in Malaysia and she answered “no”. She was asked if she knew what educational qualifications the applicant has, and she also replied “no”. The Tribunal then asked the witness if she knows whether the applicant has ever had a boyfriend and she replied “no”. When asked why the applicant does not want to return to Malaysia [Ms A] said, “because she wants to be in a relationship with me”. It was claimed the applicant is worried about her family, and of Malaysia being against LGBTQ. The Tribunal asked if the applicant had ever discussed any problems she had in Malaysia and the witness said she had relationship difficulties. The Tribunal asked if she had ever disclosed any social problems. [Ms A] said the applicant had been looked down on, bullied and abused. When the Tribunal asked if the applicant had been concerned about any government sanctions in Malaysia, the witness referred to the Department of Religious Affairs, which she said is a federal institution but is everywhere.
Evidence of the witness – [Ms B]
The witness confirmed she is a housemate of the applicant and [Ms A]. She said the applicant and [Ms A] met in December 2021 at a baby shower. [Ms B] said after the gender reveal party, they met up and got to know each other. The witness said the applicant was working at the same place as her, a [factory]. She said [Ms A] also worked there. [Ms B] said the relationship started after the gender reveal party and [Ms A] moved in in January this year. As to whether anyone else knows about their relationship, the witness said maybe their friends do. She was asked if she knew whether the applicant’s parents or family know about the relationship and she replied that she thought the applicant had told her parents. [Ms B] was not sure if the applicant has had any relationships before. According to the witness, she has lived at the house with the applicant since March or April 2021. She said she has a room in their house, and the applicant and [Ms A] share a room.
The hearing was adjourned for 10 minutes while the applicant consulted with her representative. The representative indicated the applicant would like to make a further submission and there would also be a request for time after the hearing to provide more information. The applicant wanted to comment on the nature of her relationship with [Mr E]. She said they were friends, but also a little more than friends but it was just to conceal from her family that she was interested in relationships with women and now she does not have a relationship with him at all.
424A letter inviting the applicant to comment or respond to information
The Tribunal wrote to the applicant on 2 June 2022 inviting her to comment or respond to information as follows:
I am writing in relation to the application for review made by you in respect of a decision to refuse your application for a Protection (subclass 866) visa.
Your representative requested copies of information put to you at the hearing in accordance with s.424AA of the Migration Act. That information was images from a [Social Media 2] account under the name “[applicant alias]”. There are photos and video from 2020 and 2021 of you and a young man that are tagged “[applicant alias] is with [Mr E]”. The material shown to you at the hearing is attached.
You have also requested a copy of your Department of Home Affairs Application for a protection visa. A copy of that application form is attached.
In conducting the review, we are required by the Migration Act 1958 to invite you to
comment on or respond to certain information which we consider would, subject to
your comments or response be the reason, or a part of the reason, for affirming the decision under review.
The particulars of the information are:
·During the hearing you advised that the printed [Social Media 1] photos you submitted in evidence needed to be clicked on because they have a story. You did not provide any story from the site in relation to the photos. The Tribunal viewed the [Social Media 1] profile as indicated on the submissions and was only able to find brief comments in reference to the photos such as “our first journey” and “capture every moment”.
·On your [Social Media 1] page “[applicant alias]” there is a video of you and a different young man in various settings. They are similar in nature to your social media posts with [Ms A] in that you appear to be very close and affectionate with him.
The applicant was advised why the information was considered relevant to the review and she was invited to comment or respond to the information. The Tribunal also advised the applicant she could request an extension of time to comment.
The applicant provided a response to the invitation to comment which has been considered in the assessment of her claims.
Country Information – Malaysia
Malaysia is a conservative Islamic nation and there is widespread official and societal disapproval of LGBTI identities and behaviours. Adult same-sex acts are illegal regardless of age and consent… Numerous state-level syariah-based laws also prohibit both same-sex relations and non-normative gender expression. In February 2021, a nine-judge panel of the Federal Court unanimously declared that a Selangor syariah law criminalising ‘unnatural sex’ was unconstitutional, with the power to make laws with respect to such offences being reserved to the Malaysian Parliament…
The former BN government was strongly opposed to the ‘promotion’ of LGBTI issues and had committed to a five-year action plan to address ‘social ills’ that focused to a large degree on the LGBTI community. Key elements of the action plan included rehabilitation programs for LGBTI individuals (discussed in this section), prevention seminars for parents and students, and enforcement of laws and policies prohibiting the public ‘glamorisation’ of LGBT lifestyles, including through restricting the online space for LGBTI activities and individuals (see Media). Despite the general improvement in the human rights climate following the change of government in May 2018, in-country sources report that LGBTI issues remain sensitive. Notwithstanding its general reformist nature, the previous PH administration was generally unwilling to engage with LGBTI advocacy groups or to consider any substantial changes in its approach to LGBTI issues, including through its rhetoric. In September 2018, for example, then-Prime Minister Mahathir stated that Malaysia ‘cannot accept LGBT culture’, while in March 2019 the Tourism Minister responded to a question about whether Malaysia would welcome gay foreign tourists by denying the existence of gay people in Malaysia. An aide reportedly later clarified that the minister was echoing the government’s stance that LGBTI individuals were not officially recognised in the country. The current PN coalition is even less well-disposed towards LGBTI activities and individuals.
While successive governments’ stances on LGBTI issues apply to all within Malaysia, including foreigners, they are especially pronounced for Malays/Muslims due to the fact that a variety of LGBTI behaviours constitute syariah offences as well as offences against the penal code. Human Rights Watch reported in 2019 that the increased political competition in the Malay heartland, ‘presumed to be socially and religiously conservative, [had] caused politicians from across the political spectrum to emphatically adopt anti-LGBT positions.’ In-country sources report the conditions for transgender Malaysians are worsening and that Malaysia is becoming less tolerant overall for LGBTI people, and worse than it was under the long-running BN government due to the presence of the Malaysian Islamic Party (PAS) in the Perikatan Nasional governing coalition.
Malaysia does not have a national organisation committed to progressing LGBTI rights, but a loose coalition of NGOs and individuals reportedly works to advocate such rights within the framework of broader human rights advocacy. Longstanding official opposition towards the promotion of LGBTI issues in public spaces, which has increased under the current government, has hampered the effectiveness of such advocacy…
The level and frequency of discrimination faced by members of the LGBTI community differs according to their socio-economic status, religion, geographic location and degree of openness. Well-educated urban LGBTI individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than are poorer individuals in rural areas. Sources report society is generally more permissive of people who identify as LGBTI in Kuala Lumpur than they are in East Coast peninsular Malaysia or Sarawak and Sabah.
DFAT assesses that, in general, LGBTI individuals face a moderate risk of official and societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces and employment opportunities, and/or familial or societal violence. These risks are higher for Malay/Muslim LGBTI individuals, for transgender individuals, and for LGBTI individuals located in poorer and rural areas. DFAT assesses LGBTI civil society organisations are generally able to operate unhindered but high-profile work and leaders may be targeted.[1]
[1] DFAT Country Information Report Malaysia (June 2021)
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Assessment
Claims before the primary decision was made
The applicant’s original claims for protection were that she wanted to marry a man she met at work, but her parents disapproved and threatened to kill him because they wanted her to marry a cousin. The Department made its decision to refuse the application based on those claims. Prior to the Tribunal hearing the applicant claimed her instructions to the person who assisted her were not accurately conveyed in English. Her actual claims are that she is gay and will face serious and/or significant harm if she is required to return to Malaysia.
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made, or evidence not presented before the primary decision was made.
During the hearing the applicant was asked who had assisted her to make her application for a Protection visa. The applicant indicated it was someone she met through a friend, but she did not know the name or background of the person; they did not meet in person and she provided her information through WhatsApp. The applicant said her friend had used their services before and she went along with it. The applicant denied any knowledge of the original claims made and said she had given the information about her sexual identity. She suggested her claims had been mixed up. The Tribunal was concerned that the applicant would have taken such a casual approach to the issue of fearing significant harm if she returns to Malaysia and asked for further details about the process. The applicant said she does not know any more about it and although she gave her information in writing, she no longer has the details and did not save anything.
The Tribunal considered the applicant’s explanation for her original claims being incorrect and the evidence provided to the Tribunal not being presented to the Department. The Tribunal notes the applicant is educated and literate, and while she may not be proficient in English, she has proven herself to be resourceful and capable. The applicant arrived in Australia alone and according to her evidence, worked and supported herself before moving to [Town 2] and [Town 1] and securing work in factories. The Tribunal did not find it credible that a genuine asylum seeker would provide claims of fearing persecution due to their sexual orientation to an unknown person through an app, trusting that they would submit an accurate protection application. The Tribunal found the explanation unpersuasive and is not satisfied the applicant had a reasonable explanation for why her claims to the Tribunal were not made, and evidence not presented before the primary decision was made.
Claims made to the Tribunal
The applicant submitted different claims for protection before the Tribunal. She claimed to identify as a homosexual woman who had a same-sex relationship in Malaysia and is currently in a same-sex relationship in Australia. The applicant claims to have a well-founded fear of persecution in Malaysia because of her sexual identity.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. The Tribunal is satisfied LGBTQI people are members of a particular social group.
The Tribunal took into account that LGBTQI persons may have considerable barriers to disclosing and discussing their sexuality. The Tribunal acknowledges that there is a diversity of experience in relation to sexuality, both in how a person may feel about it, and how they express it. Claims of sexual orientation can be difficult to substantiate and are thus difficult for the Tribunal to evaluate. Because of this, the Tribunal is generally reluctant to make findings that a person does not identify as a homosexual if in fact a person claims to have that sexual orientation. The applicant agreed that she had been in an intimate relationship with a young man in Malaysia as well as a woman but claimed this had confirmed her sexual preference for women. The Tribunal accepts the representative’s post hearing submission that it is not uncommon for a young person to explore their sexuality and preferences.
The applicant claims to be in a same-sex relationship with [Ms A] who she lives with in [Town 1], New South Wales. At the Tribunal hearing [Ms A] appeared to have very limited knowledge about the applicant and did not know what family she has, what qualifications, or anything about her life in Malaysia before they met, other than an alleged relationship with another woman. The Tribunal found this unusual for two people who claim to be in a committed relationship. In her statutory declaration submitted before the hearing the applicant claimed when she and [Ms A] got to know each other they discussed their lives, relationships, and ex-partners, and they have spoken about marriage. Based on the evidence before the Tribunal, and the lateness of the claim, the Tribunal had concerns about the genuineness of the relationship between the applicant and [Ms A]. The Tribunal notes the applicant provided additional witness statements after the hearing providing some support for the applicant’s claims of a relationship with [Ms A] but for the following reasons, they do not outweigh the Tribunals overall concerns about the veracity of the applicant’s current claims.
After information was put to the applicant at the hearing about her relationship with a young man, the applicant confirmed it had occurred although she was equivocal about the nature of it. In her evidence at the hearing and in a post-hearing statutory declaration, the applicant claimed she had continued to post on social media about [Mr E] as a cover to give the appearance that she was in a heterosexual relationship because her parents use [Social Media 2]. The Tribunal was concerned the applicant may equally have concocted the social media posts of herself and [Ms A] to give the appearance of a relationship with her to achieve a visa outcome. The applicant was prepared to deceive her family by continuing to post about a heterosexual relationship, and by her own admission “use” [Mr E] for that purpose. She also claimed to have deceived her parents about her plans to travel to Australia alone, telling them she was going to Thailand for a holiday with friends. When the applicant arrived in Australia, she held a Visitor visa but according to her evidence, began selling food to earn money, which was a breach of her visa conditions. Since the applicant has admitted to being dishonest to suit her requirements, the Tribunal is not satisfied the applicant’s claimed reasons for leaving Malaysia can be relied on.
Based on relevant country information, it is clear that whether or not a homosexual or bisexual person is at risk of persecution is dependent on their circumstances. In the applicant’s case she has been quite vague about her circumstances in Malaysia and what may happen that causes her to fear persecution. When asked about her reasons to fear returning to Malaysia, the applicant claimed she cannot be someone who likes girls; she would face cruelty by society; she may be forced to go to counselling, and she could be “locked up”. The applicant claimed she is afraid of her family not accepting her sexual identity and that they may try to force her to marry a man. However, the applicant claimed to have been in a same-sex relationship in Malaysia from the age of 18 to 21. She claimed to have lived with her girlfriend during college. Photos were submitted of the applicant with another young woman, including one where two people (shown from the back) are holding hands in a public place. Although she declared her family did not approve, and she and her partner were subjected to harassment and name calling when they expressed affection in public, the Tribunal notes that they were nonetheless able to continue the relationship, until it ended for unrelated reasons. The Tribunal considered, and put to the applicant for comment, that she appeared in a video compilation on [Social Media 1] with an unidentified young man who the applicant stated in her post hearing submissions was gay. The video depicts the applicant and the young man in public places in Malaysia. They appear to be able to freely express affection and playfulness in a variety of settings. The Tribunal accepts that LGBTQI people in Malaysia can be subjected to disapproval and harassment, but the applicant’s evidence indicates she has not been seriously curtailed in being able to pursue friendships and relationships of her choosing.

The Tribunal considered the applicant’s claims of being pressured into a heterosexual relationship by her family. The applicant gave an example during the hearing of her parents trying to introduce her to a male. At first the applicant claimed that since she was at college, she did not go home. She then claimed the incident occurred when she was at home. Whatever the circumstances were, the Tribunal finds that as an independent adult who has lived away from home as a student and then in Australia for the last three years, she would not be forced into an unwanted relationship by family. According to DFAT country information, forced marriage is also unlawful in Malaysia.[2]
[2] DFAT Country Information Report Malaysia (June 2021).
The Tribunal considered the applicant’s evidence regarding her education and employment. The applicant completed post-secondary qualifications in Malaysia but only reported short periods of work in an office and selling [Product 1]. When she arrived in Australia, she began working selling food to earn an income, moved to a regional area and secured ongoing work. The applicant gave limited information about her reasons for travelling to [Town 1] and how she found work. She was also extremely guarded in providing details about who helped her with her application for protection, in most cases referring only to being assisted by “friends”.
DFAT country information states that in the last few years there have been media reports of Malaysian nationals who arrived under an Electronic Travel Authority (ETA) working unlawfully, either overstaying their visitor’s visa or seeking protection visas after entering Australia on a visitor’s visa. In-country sources have reported that organised migration crime syndicates target the Malaysian market, selling packages on commercial websites that provide advice on how to obtain a visa fraudulently and work in Australia, or providing such advice through WhatsApp or closed [Social Media 2] groups. In addition to an airfare, some packages reportedly include scripts and real-time coaching to assist the purchaser in seeking a secondary protection visa upon arrival in Australia.[3] During the hearing the applicant denied learning about working in [Town 1] while in Malaysia. However, based on the applicant’s original protection claims and lack of any supporting evidence at the time, together with the superficial account of how she came to be in [Town 1], and how she applied for protection, the Tribunal considers it likely the applicant left Malaysia for employment purposes, rather than because she feared persecution or harm in Malaysia.
[3] Ibid.
The applicant and her witness [Ms A] claimed the applicant is concerned about the Federal Department of Religious Affairs in Malaysia. The UK Home Office states: Laws relating to LGBTQI issues are frequently devolved to Sharia law which applies to Muslims across all 13 states and 3 federal territories. All of them criminalise same sex sexual acts… In general, Sharia law does not apply to non-Muslims… Generally non-Muslims are not at risk from prosecution or affected by the imposition of Sharia law.[4] The Tribunal notes the applicant has indicated she is Buddhist and therefore, would not be subject to Sharia law. The UK Home Office also states prosecutions in relation to same sex activities have not been common and when they have occurred, they have been in relation to state-based Sharia legislation rather than federal law.[5] For these reasons, the Tribunal is not satisfied the applicant would be forced to undergo any type of counselling aimed at changing her sexual orientation because country information indicates this type of action is usually associated with Sharia law applicable to Muslims.
[4] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression
[5] Ibid.
After weighing the applicant’s circumstances individually and cumulatively, the Tribunal is not satisfied that there is a real chance that on return to Malaysia now or in the reasonably foreseeable future, the applicant would face harm for reasons of race, religion, nationality, membership of a particular social group or political opinion.
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).
Complementary protection criteria
A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. Significant harm is defined as arbitrary deprivation of life; the death penalty; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The applicant claimed to fear harm due to her sexual identity as a same sex attracted female. She indicated a concern that if she returns Malaysia, she would be fearful of society because of the cruelty she would face, and she could be locked up. The applicant gave examples in her evidence of being yelled at, questioned, and called unpleasant names when she was demonstrative in public with her girlfriend. She did not explain what she meant by “cruelty” from society. Based on country information about the treatment of LGBTQI people in Malaysia, the Tribunal accepts the applicant could face a level of harassment and discrimination in future if she is open about her sexuality. However, the Tribunal is not satisfied the applicant would be subjected to any treatment amounting to significant harm such as arbitrary deprivation of life; the death penalty, cruel or inhuman treatment or punishment, or degrading treatment or punishment. For these reasons, the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm if she returns to her home country.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wendy Banfield
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 3003

30 June 2022

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