1934835 (Refugee)
[2024] ARTA 784
•2 December 2024
1934835 (REFUGEE) [2024] ARTA 784 (2 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Representative: Ms Latifa Al-Haouli (MARN: 1175724)
Respondent: Minister for Home Affairs
Tribunal Number: 1934835
Tribunal:General Member J Ermert
Date:2 December 2024
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets s 36(2)(a) of the Migration Act.
Statement made on 02 December 2024 at 12:06pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual – love marriage – employment – fear of sexual assault – fear of killing – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Class XA Subclass 866 protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 8 August 2019. The delegate refused to grant the visa on 9 December 2019 on the basis that the applicant is not a person in respect of whom Australia has protection obligations because he is neither a refugee nor a person who satisfies the complementary protection criterion.
On 14 October 2024, the Administrative Appeals Tribunal (‘AAT’) became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 12 November 2024 by video to give evidence and present arguments. 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.
BACKGROUND
The applicant is [an age] year old man from Malaysia. He was born in Keningau, Sabah to a family of [number of children]. His mother and siblings are all still in Malaysia, his father having recently passed away.
After studying [subject 1], the applicant worked briefly in admin at [two businesses] before coming to Australia.
Movement records maintained by the Department of Home Affairs (‘the Department’) indicate the applicant arrived in Australia [in] May 2019 on a Class UD Subclass 601 Electronic Travel Authority, and he has remained in Australia since. On 8 August 2019, he applied for the grant of a protection visa the refusal of which is the subject of this review.
The Tribunal accepts each of the above matters to be true in the absence of information and evidence to the contrary.
Evidence before the Department
The protection claims advanced by the applicant in his protection visa application under the heading ‘Reasons for claiming protection’ can be summarised as follows. He fears harm from his parents and brothers who have threatened to kill him and a woman called [Ms A] with whom he was in love with, because his parents and brothers were opposed to their relationship and because his parents and brothers wanted him to marry a relative instead. He and [Ms A] did not try to relocate because they were sure they would be found, and they also did not seek help because they were too scared and did not know what to do, and ran away together to Australia instead. If he and [Ms A] returned to Malaysia, they would be killed by his parents and brothers.
The applicant has not provided any material to the Department to substantiate these protection claims.
The delegate refused the applicant’s protection visa application without inviting the applicant to an interview. In summary, the delegate found that despite the presence of some restrictions such as the prohibition against Muslims marrying non-Muslims and the non-recognition of marriage without the consent of a wali under Islamic law, the legislation does require marriages to be by mutual consent. Further, there is effective state protection against forced marriage which the applicant is able to access, such that there is not a real chance or real risk that the applicant would suffer serious or significant harm in the reasonably foreseeable future if he returned to Malaysia.
Evidence before the Tribunal
Pre-hearing submissions
In pre-hearing submissions made to the Tribunal, the applicant made the following (summarised) claims:
·The protection claims in his protection visa application are false and were made by the person who he paid to help him make the application because he did not know how to do so, having newly arrived in Australia.
·He is not a Malay Muslim as claimed in the protection visa application. Instead he is of the minority Murut ethnicity and is a Protestant Christian.
·His real claims for protection are based on his sexual orientation as a gay person.
·He remembers feeling different from as young as 5 years of age. He was always envious of his sisters’ dresses and makeup, and he would secretly try on his sisters’ dresses when no one was around which made him feel happy.
·He was sexually abused by a neighbour whilst on a fishing trip where the neighbour forced him to perform oral sex.
·He boarded at a boys’ hostel when he began secondary school because his school was far away from home and he went home only on weekends. He was constantly harassed and bullied by other boys at the hostel, including sexual harassment, because of his feminine appearance.
·Even though a teacher subsequently discovered the harassment and bullying, the teacher refused to report the boys to the school principal because one of the bullies was a popular student who came from a rich and powerful family.
·When the applicant was in his second year [of his course], he met another student [Friend A] with whom he spent a lot of time together because they were in the same classes. He started to develop feelings towards [Friend A], even though [Friend A] is Muslim and already had a long-term girlfriend at the time.
·His feelings towards [Friend A] were reciprocated by [Friend A] who confessed he was bisexual. They started a secret relationship, which later ended because [Friend A] was forced to marry his girlfriend. The applicant was heartbroken and took a long time to get over [Friend A].
·He started applying for jobs after graduating from [his course], but he was constantly rejected based on his feminine appearance and his perceived lack of suitability. Due to the constant shame and discrimination, he started doubting himself and tried to hide who he really is.
·He began exploring his sexual orientation after arriving in Australia and after realising that gay men in Australia are not harassed for their sexual orientation. This caused a deterioration in his relationship with his parents when they found out.
·He is haunted by his father’s last dying words that his father would not rest in peace if he was ever with a man, and for which he is receiving counselling.
·He is afraid to return to Malaysia where LGBTIQ individuals are not accepted and are subjected to persecution. He fears his family would report him to the authorities.
·Internal relocation is not an option because homosexuality is punishable by law country wide and the opinion of the population against homosexuality is the same no matter where he is. He would be forced to conceal his true identity for fear of being harmed.
In support of his new claims, the applicant has provided numerous photographs including photographs of him socialising with other LGBTIQ individuals, screenshots of text message exchanges between him and a prospective date on the LGBTIQ dating app Grindr, a letter from a psychologist confirming he is receiving counselling and treatment for depression and PTSD arising from his past experiences of harassment and oppression in Malaysia for being gay, and a character reference from his current employer.
Evidence at hearing
The applicant confirmed at the hearing that the protection claims in his protection visa application are untrue and that they were made up by the person who helped him with his visa application without his input, and that he only discovered the false claims upon receiving notification of his visa refusal decision. The applicant gave evidence that he was unaware that he was actually applying for a protection visa, even though he genuinely intended to obtain a visa to extend his stay in Australia for as long as possible because he felt safe here.
The applicant claimed he came to Australia because of the stress, anxiety and fear he felt living in Malaysia that made him want to get as far away as possible. The sources of those feelings included (1) his difficulty in finding a job; (2) he was a victim of constant bullying and harassment, especially when he went to a public toilet; (3) he was labelled and stigmatised for being a femboy and gay; and (4) he felt marginalised and unaccepted. As a ‘soft boy’, he was always reminded by his parents that heterodox sexual orientations, identities and behaviours are forbidden in their religion. Whenever his father saw him talking to other effeminate boys whilst picking him up from the boarding hostel to go home for the weekend, his father would voice his disapproval and forbid him from socialising with those boys. Except for [one sibling] who sort of understood and accepted him, all of his family members discussed his effeminacy in a denigrating way at home and reminded him not to bring shame to the family.
The applicant confirmed that he identifies himself as a man but he likes to dress and behave in feminine ways. He also confirmed that he is gay. The applicant gave evidence that since about the age of 5, he has always thought that his sisters looked beautiful in their dresses and he wanted to wear a dress just like them, but he was not allowed to and that made him feel sad, especially as he was made to feel there was something wrong with him for wanting to dress up like a girl.
In response to the Tribunal’s question regarding how he believes he would be perceived if he was in Malaysia dressed like he was at the hearing, the applicant claimed he would be perceived as some sort of virus who poisons the community and corrupts the children, and that he would be harassed and discriminated against. When asked whether he has had any homosexual relationships whilst he was in Malaysia, the applicant confirmed he has only had one and that was with his [student] friend and classmate [Friend A], with whom he was together for over 2 years. He and [Friend A] were able to conceal their relationship only because he dressed like a boy at the time, outwardly they acted like they were just friends, and it was public knowledge that [Friend A] had a long term girlfriend, so everyone thought he and [Friend A] were just good friends and no one suspected the true nature of their relationship.
The applicant gave evidence that he has participated in LGBTIQ events in Melbourne such as the Pride Run and that he has many LGBTIQ friends who he regularly socialises with whenever he has free time. There is also a LGBTIQ-friendly club in the Melbourne CBD that he has been to with friends, although he was unable to remember the name of the place. He is currently living together with work colleague who is also a gay femboy, but they are just housemates and good friends and they are not in a relationship together.
The applicant claimed he is not currently in a relationship and that he is “still looking”. He has had several relationships since arriving in Australia and Grindr is where he typically goes to look for a partner, although all of his past relationships were casual, including the most recent one with a man who confessed he was married and which ended the month before the hearing.
The applicant claimed he fears returning to Malaysia where he would lose the freedom to live as himself, and that he would be bullied, discriminated against and ostracised, including by his family members except his [one sibling]. He also fears the possibility of being raped because people in Malaysia regard femboys like him as dirty, low class and fair game. He believes that he would be so overwhelmed by stress and depression that he would probably kill himself.
Post-hearing submissions
The applicant and his representative indicated at the hearing that he would provide witness statements from friends who could attest to his sexual orientation and gender identity. The Tribunal agreed with the applicant and his representative that the witness statements should be provided by 15 November 2024, as the representative indicated that the witness statements have been prepared and just need to be sent to the Tribunal. However, no such statements have been received to date.
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.
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, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country information
Malaysian secular law criminalises same-sex sexual acts but in practice the law is rarely invoked,[1] with the Penal Code having only been invoked 7 times since 1938, including 4 that were directed against former Deputy Prime Minister Anwar Ibrahim.[2] Individuals found guilty under s 377A of the Penal Code for ‘carnal intercourse against the order of nature’ are liable for imprisonment of up to 20 years and a whipping.[3]
[1] ‘Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State, 22 April 2024, section 6, p.20.
[2] ‘Malaysia: On the Record: Violence Against Lesbians, Bisexual Women and Transgender Persons In Malaysia’, International Gay and Lesbian Human Rights Commission, 6 May 2014, p.33; 'No harassment of LGBT community will be allowed, says Malaysian PM Anwar', Asia News Network, 24 September 2023.
[3] ‘Penal Code’, Government of Malaysia, enacted 1936, amended 31 December 2014, ss 377A, 377B; ‘DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, [3.126].
Conservative Malaysians view LGBTIQA+ lifestyles to be inconsistent with Islam and oppose the LGBTIQA+ community and individuals. Religious and cultural taboos against same-sexual conduct are widespread.[4] [5] Politicians use negative rhetoric about the LGBTIQA+ community to gain support of Malays and win election votes.[6] [7] [8] [9] [10] Prime Minister Anwar Ibrahim has been viewed as taking an anti-LGBTIQA+ stance to bolster his Islamic credentials.[11] [12]
[4] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, [3.133].
[5] 'I Don't Want to Change Myself: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia',[6] 'Malaysia Bans Swatch LGBTQ+ Watches Ahead of State Polls', Bloomberg, 10 August 2023.
[7] 'Govt bans Swatch LGBT watches, owning one can result in 3 years' jail', Malaysiakini, 10 August 2023.
[8] ‘Malaysia Threatens Prison for Possession of LGBTQ-Themed Swatch Watches’, The Diplomat, 11 August 2023.
[9] 'Spectre of ethnic divisions hangs over Malaysia as racial, religious rhetoric intensifies ahead of state polls', Channel News Asia, 6 August 2023.
[10] 'No harassment of LGBT community will be allowed, says Malaysian PM Anwar', Asia News Network, 24 September 2023.
[11] 'LGBTQ fears grow in Malaysia as Islamists shatter reform hopes', Reuters, 21 August 2023.
[12] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, [3.129].
Malaysia’s LGBTIQA+ communities experience widespread discrimination.[13] [14] [15] [16] The level and frequency of discrimination typically correlates with their socio-economic status, religion, geographic location and degree of openness about their sexual orientation/ identity.[17] Society in Kuala Lumpur is generally more permissive of LGBTIQA+ persons compared to East Coast peninsula Malaysia or Sarawak and Sabah.[18] [19] Discrimination occurs in areas including employment, housing, and access to some government services.[20] Muslim LGBTI persons may be subject to government funded conversion therapy or ‘re-education’.[21] [22] [23] [24] Discrimination is more prevalent for Malays, transgender persons, and LGBTIQA+ individuals in poorer settings or rural areas.[25] The government restricts depictions and speech about LGBTI themes.[26] [27] [28]
[13] 'BTI 2024 Country Report - Malaysia', Bertelsmann Stiftung, 19 March 2024.
[14] 'Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, p.407.
[15] 'Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State, 22 April 2024.
[16] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, [3.148].
[17] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, [3.147].
[18] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, [3.147].
[19] 'KL Drag Queens Keep it Fabulous Under the Radar in Conservative Malaysia', Coconuts KL, 29 December[20] 'Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State, 22 April 2024.
[21] 'United States Commission on International Religious Freedom Annual Report 2023', United States Commission on International Religious Freedom (USCIRF), 1 May 2023.
[22] 'Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State, 22 April 2024.
[23] 'I Don't Want to Change Myself: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia', Human Rights Watch, Justice for Sisters, 10 August 2022.
[24] 'Conversion Practices or Efforts to Change LGBTIQ+ People in Malaysia', Justice for Sisters, April 2023.
[25] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, [3.148].
[26] 'Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State, 22 April 2024.
[27] 'In Malaysia, a 1984 publishing law being used to ban Swatch watches and books is stoking public fears, anger', Channel News Asia, 29 August 2023.
[28] ‘Malaysia cancels music festival, bans British band for on-stage same-sex kiss’, Benar News, 22 July 2023.
Authorities often charge transgender persons for cross-dressing with ‘indecent behaviour’ and also for ‘importuning for immoral purposes’ in public, and those convicted are liable for a fines and/or potentially a prison sentence of up to 14 days.[29] Justice for Sisters, an advocacy group for the LGBTIQA+ community, said it has experienced difficulty obtaining legal representation for its clients who were charged under anti-crossdressing state Islamic laws.[30] Due to their increased visibility, transgender persons are vulnerable to raids by religious authorities and subsequent placement in re-education centres.[31] Imprisoned transgender women served their sentences in prisons designated for men and police and inmates are reported to abuse them verbally and sexually.[32] [33] In 2021, a Muslim transgender woman with a high public profile fled Malaysia after religious authorities threatened to imprison or place her in a rehabilitation camp.[34]
[29] 'Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State, 22 April 2024.
[30] ‘Why Muslims accused of Shariah offences lack access to justice’, Malay Mail, 8 October 2018.
[31] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, [3.140].
[32] 'Is There Room for Transgender Rights in the ‘New Malaysia’?', The Diplomat, 4 April 2019.
[33] 'Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State, 22 April 2024.
[34] 'Transgender Woman Flees Malaysia After Prison Threat for Wearing Hijab', The New York Times, 20 October 2021.
Transgender individuals experience discrimination and occasional violence in many facets of society, including education, employment, healthcare, and housing.[35] Justice for Sisters report that between 2014 and 2019 there have been 10 known cases of transgender murders, but note that some murders are unlikely reported.[36] [37] During 2023, there were reportedly five transgender deaths.[38] A 2018 survey by a local transgender rights group reported more than two-thirds of transgender women experienced some form of physical or emotional abuse.[39]
[35] 'Study on Discrimination Against Transgender Persons Based in Kuala Lumpur and Selangor', Human Rights Commission of Malaysia (SUHAKAM), 19 July 2019.
[36] NGOs raise alarm over yet another murder of a transgender woman’, Free Malaysia Today, 3 January 2019.
[37] ‘Gov’t must curb increasing violence against transgenders’, Malaysiakini, 20 November 2019.
[38] 'Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State, 22 April 2024.
[39] 'Country Reports on Human Rights Practices for 2022 - Malaysia', US Department of State, 20 March 2023.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations because he is either a refugee or a person who satisfies the criterion for complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be set aside and the application remitted for reconsideration.
Identity and country of nationality
The first step before commencing to assess whether the applicant is a person in respect of whom Australia has protection obligations is to determine his receiving country by reference to his country of nationality, or if the applicant is stateless, his country of former habitual residence.
The applicant has claimed to be a citizen of Malaysia. He has provided to the Department a copy of the biodata page of his Malaysian passport and a copy of his Malaysian national ID card in connection with his protection visa application. In the absence of evidence that the identity documents for which copies were provided are bogus documents as defined in s 5(1) of the Act, and as checks of relevant departmental systems did not raise concern that the applicant has given a false identity, the delegate accepted the applicant’s claimed identity and citizenship of Malaysia.
The Tribunal has examined the copies of the aforementioned identity documents on the applicant’s departmental file. The Tribunal has also compared the identity documents on file with the applicant’s appearance and facial features as observed during the video hearing. Based on this and in the absence of evidence that the applicant is not the person he claims to be, the Tribunal also accepts the applicant’s identity and citizenship of Malaysia.
The Tribunal finds the applicant’s country of nationality and receiving country for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act is Malaysia.
Credibility and findings of fact
Section 367A of the Act provides that where an applicant for review of a reviewable protection decision (‘the primary decision’) raises a claim or presents evidence that was not raised or presented before the primary decision was made, in making a decision on the review application the Tribunal is to draw an unfavourable inference to the credibility of the new claim raised or the new evidence presented, if the Tribunal is satisfied that the applicant does not have a reasonable explanation for why the claim was not raised or the evidence was not presented before the primary decision was made.
The Tribunal is satisfied in this case that the applicant has a reasonable explanation for his new claims and evidence such that s 367A ought not be applied to require the Tribunal to draw an unfavourable inference to the credibility of his new claims and evidence. The Tribunal is cognisant that, pursuant to s 5AAA of the Act, it is the applicant’s responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claims.
However, the Tribunal is also mindful that the applicant had newly arrived in Australia where he felt safe and he was reliant on someone else to help him apply for a visa to extend his stay, without being made aware that he was in fact applying for a protection visa in respect of which claims were raised on his behalf. Given the applicant did not know that claims had been raised on his behalf which did not reflect his real situation, and given he did not get an opportunity to be made aware of the purported claims and to correct them because he was neither invited to an interview nor requested to provide further information in respect of the purported claims, it is understandable why he did not raise his real claims or provide relevant supporting evidence before the primary decision was made.
The Tribunal has had regard to the fact that the applicant was advised in his application acknowledgement letter that he could voluntarily provide additional supporting information and the methods to provide such additional information, and that a decision could be made on his protection visa application without further opportunities being given to provide the additional information (if any). In circumstances where the applicant was at the time not represented and was unfamiliar with the complexities of navigating the protection visa application process, and in the absence of triggering events such as those discussed in the preceding paragraph which might have prompted the applicant to realise that something was awry which required rectification, the applicant’s omission to provide further supporting information before the primary decision was made is hardly surprising.
Accordingly, the Tribunal finds that s 367A of the Act does not apply here to the applicant.
The Tribunal has considered applicant’s new claims and the evidence he gave in support of those new claims. The Tribunal finds the applicant’s evidence to be forthright and he was able to provide detailed description of his experiences growing up in Malaysia, his secret relationship with [Friend A], and his feelings of rejection and isolation because of what he has always been told is ‘normal’ and because of the way others saw and treated him.
The Tribunal accepts therefore that the applicant identifies as a man, even though his presentation and demeanour is effeminate and he has wanted to be able to dress in women’s/feminine clothing since he was a boy. The Tribunal accepts that, despite not being a Malay Muslim, because of the prevailing attitude of his family members (other than his [one sibling]) and society against LGBTIQA+, the applicant has concealed his gender identity as a femboy and tried outwardly to present himself as a man. The Tribunal accepts that despite his attempts to look and act like a man, he was still harassed and bullied at the boarding hostel, he has faced multiple job rejections because of biases directed towards his effeminate appearance and his perceived lack of suitability for the jobs he applied for, and he was made to feel uncomfortable and unsafe particularly in places such as public toilets. The Tribunal also accepts that the applicant’s sexual orientation is gay and that he has had several casual relationships since arriving in Australia with partners he connected on Grindr, although he is not currently in a relationship.
Assessment of refugee status
The Tribunal notes in this case that despite stating at the hearing that she would provide witness statements from the applicant’s friends in Australia who could attest to his sexual orientation and gender identity and despite agreeing with the Tribunal that the witness statements would be submitted to the Tribunal by 15 November 2024, no such statements have been received to date from the applicant’s representative. Nevertheless, the Tribunal proceeds with the review as it has sufficient material based on which to make a review decision.
The applicant must have a well-founded fear of persecution (in Malaysia) in order to meet the definition of ‘refugee’ for the purposes of the refugee criterion in s 36(2)(a) of the Act. This requires the Tribunal to be satisfied that there is a real chance the applicant would suffer serious harm in the reasonably foreseeable future for reasons of his race, religion, nationality, membership of a particular social group or political opinion, if he returned to Malaysia. Pursuant to the leading authority in Chan Yee Kin v MIEA (1989) 169 CLR 379, a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
The Tribunal finds on the applicant’s accepted evidence that he is a member of the particular social group of ‘LGBTIQA+ individuals in Malaysia’, more specifically ‘gay men in Malaysia who are also femboys’. The Tribunal is satisfied that he is a member of such a particular social group because he shares, or is perceived to share with other members of the group, the innate and immutable characteristics of being gay and being effeminate in presentation and behaviour.
The Tribunal finds on the applicant’s accepted evidence and country information with respect to the widespread and systematic discrimination against LGBTIQA+ individuals in Malaysia that there is a real chance he would suffer serious harm in the reasonably foreseeable future if he returned to Malaysia, and that it is not possible for him to avoid the real chance by accessing state protection in circumstances where same-sex acts are criminalised under both civil and sharia law and in circumstances where his gender identity and sexual orientation would be the essential and significant reasons for the real chance of serious harm he faces.
Whilst the Penal Code has only been invoked a handful of times and whilst the sharia law does not apply to the applicant as a person who is not a Malay Muslim, the Tribunal is nevertheless satisfied that the combination of Malaysia’s widespread and systematic societal discrimination against LGBTIQA+ individuals and the general unwillingness on the part of authorities to intervene and to provide protection to LGBTIQA+ victims who have suffered harm is sufficient to establish the real chance of serious harm faced by the applicant and that such a real chance relates to all parts of Malaysia.
Moreover, the Tribunal is satisfied that the applicant cannot be reasonably expected to modify his behaviour in order to avoid the real chance of serious harm, since requiring him to resume dressing and acting like a man would conflict with his fundamental gender identity as a femboy and conceal his innate and immutable sexual orientation and characteristic as a gay man. In any event, the Tribunal notes the applicant’s evidence that even when he tried to conceal his gender identity and sexual orientation in Malaysia, he was still subjected to discrimination, harassment and bullying because of his soft and effeminate appearance.
Therefore, for all the reasons discussed, the Tribunal is satisfied that the applicant meets the definition of ‘refugee’ for the purpose of s 36(2)(a) of the Act. In the absence of evidence that the applicant has a right to enter and reside in any country apart from Australia and Malaysia, the Tribunal also finds that s 36(3) of the Act does not apply in the applicant’s circumstances.
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing: 12 November 2024
Representative: Ms Latifa Al-Haouli (MARN: 1175724)
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.
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5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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Human Rights Watch & Justice for Sisters, 10 August 2022.
2020.
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