2008713 (Refugee)

[2025] ARTA 1159

2008713 (Refugee) [2025] ARTA 1159 (13 March 2025)

Decision and
Reasons for Decision

Respondent:	Minister for Immigration and Multicultural Affairs
Tribunal Number:	2008713
Tribunal:	General Member F Robertson
Date and time of Oral decision and reasons:	13 March 2025 at 10:11am
Date of written record:	24 March 2025
Place:	Perth
Decision:	The Tribunal sets aside the decision under review and remits the application for reconsideration with an order that the applicant must be taken to have satisfied s 36(2)(a) of the Migration Act 1958 (Cth)

Statement made on 24 March 2025 at 1:26pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – homosexual – fear of arrest – physical harm – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496

DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1

EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505

Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347

SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816

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

These reasons were delivered orally on 13 March 2025 and have been reproduced from the transcript, edited without variation to the substance of the decision and reasons, to insert headings, relevant footnotes and to correct matters of grammar and infelicity of expression.

INTRODUCTION

1. This is an application for review of a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').

2. The applicant is [an age]-year-old male from Malaysia. The applicant arrived in Australia in November 2016 as the holder of a tourist visa. He attempted to apply for a protection visa in February 2017, but the application was invalidated because the applicant failed to provide personal identifiers. The applicant then validly applied for protection visa in June 2017. I draw no adverse inference from this.

3. The applicant's protection visa application claimed that he was a gay man who had a boyfriend who was also applying for a protection visa. The application feared harm from police, community and family members and that his religion did not accept his relationship. The delegate did not accept the applicant’s claims and found that the applicant did not face a real chance of serious harm or face a real risk of significant harm if he was returned to Malaysia. The applicant thereafter applied for review of that decision.

4. In his pre-hearing information form, the applicant submitted:

   I identify as someone who is attracted to the same sex. Due to the limited options for same-sex couples in Malaysia , my ex-boyfriend and I decided to move to Australia. Although our relationship eventually ended , and he returned to Malaysia , I am now exploring a new relationship here . In Malaysia, where I grew up , the laws against homosexual practices can result in severe penalties, including imprisonment for up to 20 years . Because of this, I have significant concerns about returning home. I worry that my family may not accept my sexuality and could report me to the authorities , putting me at risk of arrest. I hope for a future where I can safely express my identity and be accepted for who I am. I identify as being attracted to the same sex. My journey has been challenging ; my ex-boyfriend and I faced significant barriers in Malaysia, as we could not live together or get married.

   We decided to move to Australia for a fresh start, but unfortunately, my partner later chose to return to Malaysia, leading to our breakup. Currently, I am seeing someone new, and I'm hopeful about the future. However, I am aware of the societal challenges in Malaysia, where homosexual practices are criminalized and can lead to severe penalties. If I were to return, I worry that my family might not accept me and could potentially report me to the authorities , which would put me at risk of arrest. My experiences have made me value acceptance and understanding even more, and I hope to contribute positively to conversations around these issues.

5. The application was listed for hearing today, 13 March 2025. The applicant was represented by his solicitor, Mr John. The applicant also relies upon a statutory declaration dated 6 March 2025, photographs and written submissions filed by Mr John, the applicant's solicitor. The Tribunal hearing was conducted with the assistance of a Malay interpreter.

   CRITERIA FOR THE GRANT OF A PROTECTION VISA

6. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is either, they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds or are a member of the same family unit as a person who satisfies either s 36(2)(a) or (aa).

   Refugee criterion

7. Section 36(2)(a) of the Act 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 decision‑maker 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.[1]

   [1]        Migration Act 1958 (Cth), s 5H(1)(a).

8. 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.[2] Among other things, persecution must involve serious harm[3] and systematic and discriminatory conduct.[4]

   [2]        Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

   [3]        Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act contains a non-exhaustive list of examples of harm that involve serious harm, without otherwise limiting the nature or type of harm that might come within s 5J(4)(b).

   [4]        Migration Act 1958 (Cth), s 5J(4)(c).

9. A fear of persecution will be 'well‑founded' if there is a 'real chance' that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[5] A 'real chance' is a prospect that is not 'remote' or 'far‑fetched', it does not require a likelihood of persecution on the balance of probabilities.[6]

   [5]        Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

   [6]        DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.

   Complementary protection criterion

10. A person who does not satisfy the ‘refugee criterion’ in s 36(2)(a) of the Act, may satisfy the 'complementary protection criterion' under s 36(2)(aa). That criterion is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a 'necessary and foreseeable consequence' of return to the receiving country.[7]

    [7]        DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

11. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[8] As to what amounts to 'significant harm’, that term is exhaustively defined in s 36(2A) of the Act.[9]

    [8]        Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ), [342] (Flick J).

    [9]        DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); see also Migration Act 1958 (Cth), s 5 in respect of the definitions of 'torture', 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment'.

    CLAIMS AND EVIDENCE

12. The applicant was born in [specified year] to Muslim parents in Sabah, Malaysia. He claims that from an early age, he recognised his identity as a gay man. He claims this realisation caused him to experience bullying throughout school, which he claims affected his academic performance and self-esteem. The applicant claims that his family, in particular his brothers, responded to his identity with hostility, threatening violence, including death, if he did not conform with the traditional norms of masculinity and heterosexuality. According to the applicant, the broader Malay community shares this hostility.

13. He claims that homosexuality is viewed as un-Islamic, sinful, socially stigmatised. He further claims that he lived under constant threat, not just from his family, but from the larger Muslim community, which he describes as intolerant of LGBTQIA+ individuals. He alleges that this cultural and religious climate created an atmosphere of fear, exclusion and psychological distress not only for him but for other persons who identify with that community. The applicant claims that his working life spanning [various sectors] was marked by persistent discrimination because of his actual or perceived sexuality.

14. He recounts workplace bullying, limited career progression and general fear of being exposed as being a gay man. He also expresses distrust in Malay law enforcement, claiming police officers harassed him and other gay individuals further diminishing his faith in the ability of the Malaysian authorities to provide protection. According to the applicant, in 2015, family tensions escalated when his father became ill, which prompted him to leave his job to provide care for his father. His father’s death in 2016, the applicant claims, was somewhat of a watershed moment, because it deprived him of what little protection he had, leaving him vulnerable to his brothers more than he was prior to his father’s death.

15. The applicant claims that fearing for his safety, he sought refuge in Australia, where he arrived on a tourist visa. The applicant describes his life in Australia as one of relative safety and dignity free from the threats he faced in Malaysia. He has detailed his past and current same-sex relationships and has asserted that returning to Malaysia will force him into secrecy and expose him to significant harm. He contends that Malaysia’s legal system criminalises homosexuality and that the government endorses coercive practices aimed at curing LGBTQ+ individuals.

16. He further alleges that police harassment, social discrimination, societal discrimination and the risk of physical violence make it impossible for him to live as an openly gay man in Malaysia. He further claims that he is identifiable as a gay man or would be at least imputed as being a gay man because has feminine characteristics, which were something that he claimed resulted or partially to blame for his being bullied as he was young. In sum, the applicant claims that returning to Malaysia would subject him to persecution from his family, from society and the state. And as a result, he claims he faces a real chance of serious harm.

17. He claims that Australia provides the only viable place he can live openly and safely as a gay man and should grant a protection visa on this basis. The applicant’s evidence at the hearing was consistent with that which was set out in his statutory declaration. He indicated that he commenced his current relationship about six months ago, but it only became a committed relationship around three months ago. I discussed the applicant’s past relationship, which was for a duration of about six or more years, with the applicant at the hearing.

18. The applicant became visibly upset when discussing the end of the relationship with his former partner and discussed in some detail the circumstances surrounding his former partner making the decision to return to Malaysia to get married because of familial pressure that he was facing, which ultimately led to the breakdown of their relationship, and the breaking of the promise that the applicant claims, and I am prepared to accept, his partner made to him that they would live their life here in Australia. I found the applicant was able to speak spontaneously about his past and current relationships. I considered the applicant was a genuine and credible witness. I am prepared to accept his evidence.

19. In those circumstances, it was not necessary to take evidence from the applicant’s current partner. I further note that the information that is before me indicates that the applicant’s claims are consistent with the protection claims that were made by a person he identified as his boyfriend between 2017 and 2023 when that person made his own protection application. That provides some contextual and contemporaneous support for the claims that the applicant made. The applicant explained that if he was returned to Malaysia, he would not be able to live with his partner and would experience harassments spending time with him in public.

20. These are some examples of things that the applicant says he can do in Australia but would not or could not do if he returned to Malaysia. I accept that the applicant was in a relationship with his partner from 2017 to 2023 and is a gay man, as he claims. I accept that he is currently in a same-sex relationship in Australia. I accept that he would not be able to live openly as a gay man in Malaysia but can do so in Australia. I also accept, as the applicant claims, that he has features that might be considered by persons in Malaysia as being effeminate.

21. I have recently considered country information in relation to LGBTI persons in Malaysia in another decision.[10] I adopt what I said at paragraphs [52]-[58] of that decision which was as follows:

    In determining the applicant's claims, it is necessary to have regard to country information. Additionally, as I have already observed, I am expressly required to have regard to country information contained in the 2024 DFAT Report. The applicant's submissions do not refer to, or engage with, the 2024 DFAT Report. However, the applicant did refer to country information from, among others, Human Rights Watch and the Equal Rights Trust. In my view, the country information before me demonstrates as follows.

    Malaysia is a conservative Islamic nation which is generally intolerant of both LGBTQIA+ identities and behaviours.[11] Successive Malaysian Prime Ministers have made anti-LGBTQIA+ statements.[12] The present Prime Minister has reportedly said that recognition of LGBTQIA+ identity 'is a delusion'.[13] State-sponsored discrimination against LGBT people remains pervasive in Malaysia, including the funding of conversion practices.[14]

    LGBTQIA+ issues are considered taboo in Malaysia, particularly among Muslims.[15] Online abuse against people who raise LGBTQIA+ issues online is common. The practice of publicly disclosing private information associated with a person or otherwise anonymous social media account, or 'doxxing', of LGBTQIA+ people in the media and on social media was also common.[16]

    However, I do note that the situation does seem to be improving with the 2023 Legatum Prosperity Index reporting that Malaysia ranks 81st out of 167 countries for its ‘perceived tolerance of LGBTQIA+ individuals’, a result which represented an improvement from ranking 133rd in 2021.[17] Society in Kuala Lumpur is generally more permissive of LGBTQIA+ persons compared to East Coast peninsula Malaysia or Sarawak and Sabah.[18]

    The government has sought to ban media thought to promote LGBTQIA+ behaviour, including the banning of two Disney movies:[19] Lightyear, an animated children's movie set in outer space which includes a depiction of two women briefly kissing; and Thor: Love and Thunder, a Marvel Cinematic Universe comic-book based movie, which infers that one of the main female characters is bisexual and includes a scene involving an apparently male character made entirely out of stone explaining that his species reproduces when ‘two rock men hold hands over molten lava’. More recently, the Malaysian authorities cancelled a three-day music festival after Matty Healy from the bank The 1975 appeared to kiss a fellow male band member on stage and was critical of Malaysia's stance in respect of LGBTQIA+ issues.[20] The same article also reports that Malaysia's interior ministry warned that anybody wearing or selling the watches could be sentenced to three years in prison.

    Adult same-sex acts are illegal in Malaysia, irrespective of age and consent.[21] There are 52 state and federal laws that criminalise different forms of LGBTQIA+ behaviour and expression across Malaysia.[22] The impact of government policies and laws on LGBTQIA+ individuals are more pronounced for Malay-Muslims because expressions of LGBTQIA+ identity typically constitute both syariah and penal code offences.[23] People stopped by police sometimes have their phones checked for LGBTQIA+-related messages and dating apps such as Grindr.[24]

    Gay men have reported employment discrimination.[25] Discrimination remains an issue in many areas including employment, housing, and access to some government services.[26] Visibly effeminate gay men are more likely to be harassed and discriminated against.[27] Muslim gay and LGBTQIA+ persons may be subject to government funded conversion therapy or ‘re-education’.[28]

    [10]       1935679 (Refugee) (unpublished).

    [11]       'DFAT Country Information Report: Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 ('2024 DFAT Report'), [3.126].

    [12]       2024 DFAT Report, [3.129].

    [13]       'Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, 20240112083455, p 407.

    [14]       'Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, 20240112083455, p 407.

    [15]       2024 DFAT Report, [3.133]; '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, 20220811100800.

    [16]       2024 DFAT Report, [3.133].

    [17]       ‘The 2023 Legatum Prosperity Index’, Legatum Institute, 2023, 20230904113057; 'The 2021 Legatum Prosperity Index: Malaysia', Legatum Institute, 2021, 20220520124833.

    [18]       2024 DFAT Report, [3.147]; 'KL Drag Queens Keep it Fabulous Under the Radar in Conservative Malaysia', Coconuts KL, 29 December 2020, 20210920111359.

    [19]       2024 DFAT Report, [3.134]. See also, 'After ‘Thor’ and ‘Lightyear,’ Malaysia Government Commits to Banning More LGBT Films', Variety, 11 August 2022, <       2024 DFAT Report, [3.134]. 'The 1975 sued for $3.76 million over 'gay kiss' that got Malaysia's Good Vibes Festival cancelled', ABC News, 1 August 2024, < 'Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, 20240112083455, p 408.

    [21]       2024 DFAT Report, [3.126].

    [22]       2024 DFAT Report, [3.127]; 'Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, 20240112083455, p 407; 'Malaysia Human Rights Report 2023', Suaram (Suara Rakyat Malaysia), 27 March 2024, pp.168-169 & p.179, 20240327165904; ‘Penal Code’, Government of Malaysia, enacted 1936, amended 31 December 2014, sections 377A, 377B, CISEDB50AD9259.

    [23]       2024 DFAT Report, [3.128].

    [24]       2024 DFAT Report, [3.136].

    [25]       2024 DFAT Report, [3.135].

    [26]       'Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State, 22 April 2024, 20240502105551, pp 20-21.

    [27]       2024 DFAT Report, [3.135].

    [28]       See 'United States Commission on International Religious Freedom Annual Report 2023', United States Commission on International Religious Freedom (USCIRF), 1 May 2023, p.63, 20230502165921; 'Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State, 22 April 2024, section 6, p.21, 20240502105551 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021, section 3.147, p.49, 20210629092134; '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, 20220811100800; 'Hidden Behind The 'Right Path': Untangling Malaysia's "soft approach" to LGBTQ rehabilitation', Justice for Sisters, 2022, 20231214114709; 'Conversion Practices or Efforts to Change LGBTIQ+ People in Malaysia', Justice for Sisters, April 2023, 20231214114924.

    ANALYSIS, FINDINGS AND REASONS

1. An applicant is responsible for providing sufficient evidence to establish their claim to be a person in respect of whom Australia has protection obligations.[29] When assessing the claims made, I am not required to uncritically accept any or all the allegations made.[30] I do not need rebutting evidence before finding a particular factual assertion is not made out.[31]

   [29]       Migration Act 1958 (Cth), s 5AAA; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 [148] (Ladhams J).

   [30]       SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).

   [31]       CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 [7] (Heerey J).

2. I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs and the Department of Foreign Affairs and Trade ('DFAT') Country Information Report.

   DOES THE APPLICANT SATISFY THE REFUGEE CRITERION?

   Does the applicant have a well-founded fear of persecution?

3. Considering the evidence and information before me, I am not satisfied that the chance of the applicant being subjected to serious harm if he was returned to Malaysia can be categorised or found to be remote. In those circumstances, I am satisfied that the chance of the applicant being seriously harmed amounts to a real chance.

4. I also accept that the applicant faces a real chance of being coerced or forced into potentially marrying without his consent and faces a real chance of being seriously harmed by his brothers or either of them. Whilst country information indicates that consent is required for marriages in Malaysia, I am satisfied that if he were to refuse to provide his consent, he would face a real chance of significant and repeated physical harm from his family, and in particular, his brothers. I am also satisfied based on country information that if the applicant were to live openly as a gay man in Malaysia, he would be exposed to prosecution under federal and Sharia law were he to engage in sex with other man as I accept he has done in the past and would do so again in the future.

5. I am further satisfied that given his status as a Muslim male of Malay ethnicity, he faces a greater than remote chance of being forced into government funded and supported re-education programs. I further note country information indicating that the applicant would face a chance of having his mobile phone searched for apps such as Grindr and other apps that may be used by persons of the LGBT community to communicate with and connect with each other. I have given separate consideration to whether the applicant could avoid a real chance of serious harm by modifying his behaviour, however, I consider that such a modification of behaviour would require the applicant, in effect, renounce his sexuality entirely.

6. That would self-evidently involve an impermissible modification having regard to the terms of section 5J(3) of the Act. I am satisfied that the applicant conducts his life as an openly gay man and requiring him to not do so anymore would involve a modification of behaviour that would conflict with the innate or fundamental characteristics of the applicant. The harm that the applicant fears includes harm and fear from the Malaysian authorities and the Malaysian religious authorities. The law that the applicant principally fears is federal law that applies throughout Malaysia. Additional, Sharia law applies to all Muslims throughout Malaysia. Going to the applicant’s status as an ethnic Malay and therefore a person who would be identified as a Muslim, irrespective of whether he practises that religion or not, I am satisfied that there is a real chance that he would face serious harm because of his religion and because of his sexuality. And that harm would relate to all areas of Malaysia. Whilst it may be clear from the nature of the harm faced by the applicant, I nevertheless find that the harm feared by the applicant is feared for reasons of his membership of a particular social group, namely sexually active gay men.

7. I am satisfied the applicant’s membership of that particular social group would be one or more of the essential and significant reasons for the harm that he faces. I also accept that the harm that he faces would involve systematic and discriminatory conduct. I am not satisfied that there are effective protection measures available to the applicant in Malaysia or that there is a permissible modification that he can undertake to avoid the real chance of serious harm he faces. There is otherwise no evidence the applicant has a right to enter and reside temporary or otherwise in a third country.

8. For the above reasons, I am satisfied the applicant has a well-founded fear of persecution within the meaning of the Act. Therefore, I find the applicant satisfies section 36(2)(a) of the Act. In those circumstances, it is unnecessary to consider the alternative complimentary protection criterion.

   DECISION

9. The Tribunal sets aside the decision under review and remits the application for reconsideration with an order that the applicant must be taken to have satisfied s 36(2)(a) of the Migration Act 1958 (Cth).

Date of hearing:	13 March 2025
Representative for the Applicant:	Mr Johns