2009531 (Refugee) - [2025] ARTA 2095

2009531 (REFUGEE) [2025] ARTA 2095 (22 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2009531
Tribunal:Clyde Cosentino
Date:22 August 2025

Place:Brisbane
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 the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 22 August 2025 at 4:21pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual man – relationship opposed by families – threats to seriously harm, kill or report to religious authorities – relative convicted for same-sex offences – credible evidence and supporting statements – country information – national criminal and state syariah laws – harassment and employment discrimination – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal) on 14 October 2024. 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 who claims to be a national of Malaysia, applied for the visa on 7 July 2017. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant appeared before the Tribunal on 25 June 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister form Malaysia, [Ms A], by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CRITERIA FOR A 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 of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
According to his protection visa application, the applicant, male, is [Age] years old. He identifies as being of Malaysian nationality (confirmed by his Malaysian passport), Muslim and never having married. He resided at his home address in [State] from [Birth] to March 2017.
He arrived in Australia [in] March 2017 on a visitor visa. He has remained in Australia ever since. He applied for a protection visa on 7 July 2017, three months after arriving in Australia.
Evidence before the Department
The applicant provided the Department with the following documents:
a.His protection visa application
b.His Malaysian Identification card (MyKad)
c.His passport
The applicant’s claims are set out in the protection visa application dated 21 June 2017 and lodged on 7 July 2017. His application was handwritten.
In response to the question: “Why did you leave that country?”, he claims that he left his country because he was “in love with [his] gay partner”. He claims that Malaysia is an Islamic country and does not allow gay relationships. He claims that his family and his partner’s family were “strongly against” their gay relationship and that, consequently, the applicant departed Malaysia for Australia.
In response to the question: “What do you think will happen to you if you return to that country?”, he claims that if he returns to Malaysia, he will face serious harm which might “endanger his life”. He claims that his partner’s family will try and find both of them. He claims that his partner’s family have threatened to kill the applicant and seriously harm him if he is found by them.
In response to the question: “Did you move, or try to move, to another part of that country to seek safety?”, he claims that he did not because his partner’s family have a “strong background” in his country and that they are known throughout.
In response to the question: “Do you think you will be harmed or mistreated if you return to that country”, he claims that he will be harmed.
In response to the question: “Do you think the authorities of that country can and will protect you if you go back?”, he claims the authorities cannot protect him because his partner’s family have a “strong background” and that they have a “lot of members” who could find him. He does not believe the authorities can protect him.
In response to the question: “Do you think you would be able to relocate within that country to an area where you would not be harmed?”, he claims that he cannot as Malaysia is not a safe place for a gay man and he will not be protected for being gay.
Evidence before the Tribunal
On 5 May 2025, the applicant provided to the Tribunal his statement in support of his claims. In his statement he provides the following evidence:
·He met his ex-partner, [Mr B] in June 2016. He met [Mr B] in [City 1] on holiday on his way back by bus to his hometown in [City 2]. It was a twelve-hour journey, and the applicant and [Mr B] sat next to each other. They got to know each other during the twelve-hour trip and exchanged telephone numbers.
·They stayed in touch with each other and developed a close relationship. They met up on several different occasions and also went out together. Their relationship only lasted a few months. They were discovered together by [Mr B]’s sister and brother, while the applicant and [Mr B] were holding hands. [Mr B]’s brother punched the applicant in the face. The applicant quickly ran away. [Mr B]’s father and other family members were informed about the relationship.
·[Mr B]’s father was very embarrassed and upset about his son’s same sex relationship. He was worried about what family and friends would think about their homosexual relationship. [Mr B]’s father is a religious man and attends the mosque and actively participates in Islamic religious activities. [Mr B]’s family are strongly opposed to their same sex relationship.
·[Mr B]’s father came to the applicant’s sister’s house searching for him. He had been living with her at the time but was not at home when [Mr B]’s father came over. He threatened to kill the applicant and threatened to report the applicant to the Islamic Religious Affairs Department in the hope of having him arrested and punished by a Sharia Court for being homosexual. [Mr B]’s father accused the applicant of influencing [Mr B] to engage in same-sex relationships and threatened to report the applicant to the police to have him arrested.
·The applicant’s sister contacted the applicant and informed him that [Mr B]’s father had come to her house and threatened to kill the applicant. She suggested that he leave Malaysia because she was afraid that he would be arrested by the Islamic Religious Affairs Department and the police.
·As a result of what happened, the applicant stopped making contact with [Mr B]. He did not ask help from the authorities or his family because he was afraid and embarrassed about his sexuality and his feelings that he had towards men. He feared [Mr B]’s family might harm him or kill him. He decided that he should escape to Australia and seek protection.
·He claims that he is Muslim. He claims that, because of his religion, he cannot return to Malaysia as a gay man and will be persecuted for reason of being a gay man. He is also fearful [Mr B]’s father and his family will harm or kill him and that they will have him arrested by the police for being gay.
On 5 May 2025, the applicant also provided to the Tribunal his sister’s statement in support of the applicant’s claims. His sister [Ms A] (full name provided and matching the details to a copy of her Malaysian passport attached) provides the following evidence:
·She is the applicant’s sister. She lives on [Island] in [City 2]. She has two [brothers] who are in same sex relationships. Her [relative], [Mr C], is also homosexual.
·She recalls that, in 2016, she was in her house in [Village], [Island], when a man came to her home and introduced himself as [Mr B]’s father. This was the first time she had met him. She did not know who he was until he introduced himself. He arrived angry and was looking for her brother (the applicant). At that time, her brother was at work and was not at home.
·She asked why he had come to her house. [Mr B]'s father told her that her brother had been having a same sex relationship with his son. He told her that he would report her brother to the religious authorities. He also threatened to seriously harm her brother.
·She contacted her brother and told him that [Mr B]’s father had been looking for him. She told her brother that [Mr B]'s father and threatened to report him to the religious authorities.
·As his [sister], she was very worried for her brother. She was also shocked as to what he had done. She stated that the applicant told her that he was punched in the face by [Mr B] 's brother. She had suggested that he escape abroad because she was scared that her brother would be arrested by the authorities.
·She also attached a copy of a news clipping of their [relative] who was charged and jailed in September 2024, on charges of sodomising a teenager and practicing same-sex relations. She stated that she was relieved that the applicant had escaped to Australia, otherwise he would have also been arrested and sent to jail.
·She believes that the applicant’s life is in danger in Malaysia.
·She provided a Malaysian telephone number for contact.
On 5 May 2025, the applicant provided to the Tribunal a news article from [News source][1] which reported that [an occupation], [Mr C], [Age], pleaded guilty [in] September 2024 before a judge, that he committed a sexual offence of sodomy with a male teenager (the article indicates the teenager was [Age] years old), and that the offence occurred in [Village], [Island], [City 2]. The article reports that the offence of sodomy occurred over a three-year period and that the victim was diagnosed with HIV infection.
[1] [Author, News source, Headline, Date, URL]
In the applicant’s Hearing Response provided to the Tribunal on 16 May 2025, the applicant requested that his sister, [Ms A], give evidence on his behalf at the hearing set down for 25 June 2025. She would give evidence that [Mr B]’s father came to her house looking for the applicant and threatening to kill him. The telephone number was the same contact number provided in the applicant’s sister’s statement.
Tribunal hearing – 25 June 2025
The applicant gave oral evidence at the hearing in support of his claims. His oral evidence is summarised below:
·His claims were true and correct and that the claims raised in his original application were the claims he wished to discuss at the hearing.
·Before he came to Australia, he lived in [City 1], for eight months. He lived there after he left [City 2] when he found out that [Mr B]’s father was threatening to harm him. Before moving to [City 1], he was living at [Island], [Village], [City 2], [State]. He had lived there all his life.
·While staying in [City 1], he worked in [a] store. The income he received there was just enough to help him survive. He lived on the income from day to day.
·He moved to [City 1] because he was afraid of suffering harm from his former (male) partner’s family. He moved to [City 1] for his own personal safety.
·When asked who he was afraid of, he stated he was afraid of his former partner’s family. They were looking for him. He stated that [Mr B]’s family will come looking for him because they are a large family. They will keep looking for him even though he ran away from [City 2].
·When asked why he thought he would not be safe if he went back to [City 1], he stated that in the eight months he lived there, he was always moving. He stayed at different houses which is why he never had enough money to live on.
·When asked why he feared going back to Malaysia, he stated because of [Mr B]’s family who will continue to look for him. [Mr B]’s family feel ashamed of their son’s same sex relation with the applicant because they are deeply religious.
·When asked where [Mr B]’s family lived, he stated they live in [Location], which was about an hour and a half away by car from his home. They live on a different island to the applicant.
·The applicant stated that he is worried and fearful they will keep looking for him. [Mr B]’s father made it clear that he will keep looking for him.
·When asked why [Mr B]’s father will keep looking for the applicant, he stated that [Mr B]’s father is a deeply religious Muslim man and that he has a strong sense of shame.
·When asked why he fears [Mr B]’s father and family, he stated it was because of his close relationship with [Mr B], his son.
·When asked when the relationship with [Mr B] stopped, he stated about October 2016. When asked the name of his former partner, he stated [Mr B]. He was two years younger than the applicant. The applicant was [Age] years old when his relationship with [Mr B] began. He has stopped contacting [Mr B] because he is fearful for his safety.
·When asked whether he feared being harmed from [Mr B]’s family he stated that he did.
·He stated that Malaysia is an Islamic country and does not allow people to practice homosexuality. He stated that Malay people perceive gays as bad people.
·He stated that he lived a quiet life in Australia. He is fearful in practicing in an open gay relationship here given his experiences back in [State]. He is fearful that what happened to him in [State] will happen to him in Australia.
·The applicant then described himself as having left Malaysia as a gay man and continuing to live as a gay man in Australia. If he was forced to return to [State], he would be returning as a gay man.
·He stated that he has always had an attraction to men as far as he can remember. He had always wanted a relationship with men. It has been difficult because he has always lived in [State]. He stated that Sharia law is strictly applied in [State].
·He stated that [City 2], [State] where he lived for most his life, is a highly religious place.
·When asked why he could not return to [City 1] where he spent several months before coming to Australia, he stated that he was moving from place to place at the time for fear of being assaulted. It was never a place he could reside safely in. He was always certain that he would be discovered there by [Mr B]’s family.
·When asked why he would still be of interest to [Mr B]’s family after having been away in Australia for such a long time, he stated because [Mr B]’s father is a well-known religious man who attends the local mosque there and knows a lot of people in the Department of Religious Affairs. He would have made a report against the applicant and the applicant would have been a person of interest to the authorities.
·When asked why the applicant would be of interest to the authorities after such a long time in being away from his home area, he stated that his [relative] was arrested for having sex with a male teenager and this will draw attention to the applicant as a gay man.
·When asked whether the article give to the Tribunal was about the arrest of his [relative], he stated that his [relative] was arrested for having homosexual relations with another male albeit a teenage male.
·When asked where he was arrested and convicted, he stated in [City 2] in 2024.
·When asked how the authorities came to find out about his [relative], he stated that his [relative]’s male partner made a report to the police. When asked why his [relative]’s partner would do this, the applicant stated because his family pressured him to make a report.
·When asked whether the media attention given to his [relative] would affect the applicant upon his return, he stated that it would. He stated that [Mr B]’s father is not a regular man, and he will do whatever he can to draw the authorities attention to the applicant.
·The applicant stated that he could not return to his home area or anywhere else in Malaysia. When asked why he could not travel to Kuala Lumpur, he stated because [Mr B]’s father is not a normal person and has connections throughout Malaysia. He has already made a report against the applicant. Therefore, the police know about the applicant. When asked when [Mr B]’s father made a report against him, the applicant stated he knew when his sister told him what [Mr B]’s father said to her, namely that he would report the applicant to the appropriate authorities.
·The Tribunal then contacted [Ms A], the applicant’s sister, in Malaysia. The Tribunal contacted [Ms A] on the telephone number provided to the Tribunal, which matched the telephone number provided in her written statement to the Tribunal. The Tribunal then asked [Ms A] a number of identity questions which matched her passport details and family details provided by the applicant in order to establish that [Ms A] was in fact the applicant’s sister.
·[Ms A] stated that she was presently living in [City 2], [State]. She stated that she was living in the area that her brother lived in before he came to Australia.
·When asked what evidence she wanted to give at the hearing, she stated that she was fearful for her brother. She was fearful that if her brother returned, he will be imprisoned. She was fearful that the applicant would go to prison like her [relative] who was in prison. She stated that the applicant was safe while he remained in Australia.
·When asked who the applicant would be safe from if he was to remain in Australia, she stated from a family who were after him and from the laws of the area. She stated that, in Malaysia, one cannot be in a same sex relationship.
·When asked when she discovered about her brother’s relationship with [Mr B], she stated that she only became aware when [Mr B]’s father came to her house and told her that her brother was in a relationship with his son. She did not know who this man was nor did she know anything about the applicant’s partner. She only knew about this family when he came to her house.
·When asked why she thought that the applicant would still be in danger if he returned after having been away for a long period of time, she stated that she is afraid for the applicant more than ever because of the jailing of her [relative] in 2024. They only came to know about her [relative]’s circumstances after he had been arrested.
·When asked whether her family were supportive of the applicant being gay, she stated that they are very afraid to come out in support because of the jailing of her [relative]. She stated that her family’s name has been “dragged through the mud” in their home area because of the jailing of her [relative] for sodomy. Her family have been shamed by it.
·When asked whether her [relative]’s arrest and conviction in her home area would put more scrutiny on the applicant if he returned, she stated that it would. It a serious concern for her.
·The Tribunal thanked the witness and then ended the call with [Ms A].
·The Tribunal then asked the applicant what he believed would happen to him if he returned to [State] as a gay man. He stated that, no matter where he goes to live in [State], he will be fearful for his safety. He is fearful people will know about him because of his last name. When asked whether he was close to his [relative] who was arrested and convicted, he stated that he would spend a lot of time with him when they were younger. He would look after the applicant when the applicant was younger. He stated that people would associate the applicant with his [relative] if he was to return and this would endanger him.
Assessment of credibility, independent country Information, refugee criterion application, and overall findings

The applicant provided a copy of the biodata page of his Malaysian passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Malaysia and there is no information before the Tribunal to the contrary. The Tribunal finds that the applicant is a citizen of Malaysia, and that Malaysia is his receiving country for the purposes of assessing his claims for protection.
The applicant claims that he is homosexual and has lived all his life in [State], Malaysia. He claims that as a result of an adult homosexual relationship that began with another adult man, [Mr B], in June 2016, the father and family members of [Mr B] threatened the applicant with harm and also with reporting him to the Islamic Religious Affairs Department in the hope of having him arrested and punished by a Sharia Court for being homosexual. [Mr B]’s father regularly attended the mosque and was connected with people in the Department of Religious Affairs. [Mr B]’s father and his family adhere to strict Islamic ways. They are greatly opposed to homosexuality.
The applicant had already been physically assaulted by [Mr B]’s brother after he was discovered holding hands with [Mr B]’s brother. [Mr B]’s father has come to the applicant’s sister’s house (when the applicant was not present) to threaten the applicant that he will be reported to the police and to the Islamic Religious Affairs Department for being homosexual so that he could be arrested and jailed. The applicant believes that he has caused great shame to [Mr B]’s family because of his relationship (albeit brief) with [Mr B].
The applicant’s sister helped the applicant come to Australia because she feared that the applicant would be harmed if he stayed in [State]. The applicant left [City 2] for [City 1] for several months prior to coming to Australia, living from place to place for fear of being discovered. He was afraid to stay in [Island] prior to that for fear of being harmed.
He arrived in Australia [in] March 2017 on a visitor visa. He has remained in Australia ever since. He applied for a protection visa on 7 July 2017, three months after first arriving in Australia.
[In] September 2024, his [relative], [Mr C], [Age], pleaded guilty before a judge that he committed a sexual offence of sodomy with a [Age]-year-old male teenager, the offence taking place in [Village], [Island], [City 2].
The applicant fears that he will suffer harm from:
a.[Mr B]’s father and family who have been shamed by him
b.By the authorities who will arrest him and jail him for being homosexual
c.By the community at large because he is homosexual and because he is the [relative] to [Mr C] who has been convicted for sodomy of a male teenager in [City 2] and that this is public knowledge as evidenced by the news article provided.
The Tribunal found the applicant to be a credible witness when giving his evidence at the hearing about the circumstances of his homosexuality back in [City 2], his relationship with [Mr B], the circumstances behind his fear of [Mr B]’s father and family and his future fear if returned. The Tribunal found his oral evidence to be consistent with his written statement and his claims as written (albeit briefly) in his protection visa application. The applicant did not deviate in his claims and did not raise new claims that were of concern to the Tribunal. The Tribunal found the applicant to be someone speaking from lived experiences of his past back home and was satisfied from his evidence that the applicant expressed a genuine subjective fear of what harm he fears he will suffer and from whom if he returns to [State].
The Tribunal also found the applicant’s sister [Ms A] to be a very credible witness. It was satisfied from the several questions asked of [Ms A] living in the applicant’s home area that she was the sister of the applicant, questions that could only be known by family members. [Ms A] provided oral evidence that was consistent with her written statement provided to the Tribunal prior to the hearing. Moreover, she provided evidence that was consistent with the applicant’s oral evidence to questions asked of him by the Tribunal prior to taking evidence from her. All in all, the Tribunal found [Ms A] to provide evidence of events and concerns that reflected a genuine fear for the applicant’s safety. [Ms A] was able to reinforce the applicant’s claim about his homosexuality. She also gave evidence about her fear for the applicant due to her [relative] [Mr C] now being arrested and jailed for his homosexuality.
The Tribunal has considered that the applicant applied for protection on 7 July 2017, three months after arriving in Australia. The Tribunal finds this early lodgement (albeit three months) after arriving in Australia, to be consistent with someone who had a subjective fear of suffering harm back in Malaysia and applying for protection in Australia, thus going someway to the genuineness of his fear.
The Tribunal has found the written statements and the oral evidence by both the applicant and the witness to be credible, looking at the evidence as a whole. The Tribunal finds the applicant’s fear of his former partner’s family and his fear relating to his association to his [relative] who is currently in jail for homosexual acts performed on a male teenager to be cumulative. The Tribunal finds on the evidence from the applicant, from his sister and from the news article submitted that the applicant has a genuine fear that his known homosexuality in his home area will create more interest with the authorities, with [Mr B]’s family and with the community generally, given the profile arrest, conviction and jailing of his [relative] for homosexual acts with a teenage boy, even though the applicant is far removed from the actions of his [relative].
The Tribunal has considered the applicant’s evidence that he has lived all his life in [Island], [Village], [City 2], [State] (except for a few months in [City 1] where he moved around before departing for Australia) and that these are the only places he can return to. In both instances, the applicant provides credible evidence why he cannot return to either area, given that he is known to be homosexual due to his encounter with [Mr B] in his home area and due to the profile arrest, conviction and jailing of his [relative] for his homosexual acts on a teenager boy in the same region.
The Tribunal accepts on the evidence before it that the applicant has a genuine fear that he will suffer harm either at the hands of [Mr B]’s family, at the hands of the authorities in [State] or by the Muslim community at large. The Tribunal accepts on the evidence before it that the applicant has identified as being homosexual or LGBTQIA+ and that he identifies as a member of this particular group. The Tribunal finds on the evidence before it that the applicant identifies as homosexual in his home area in [Island], [Village], [City 2], [State], that he identifies as a man who is homosexual at present time, and that he will continue to identify as a man who is homosexual if he returns to Malaysia in the reasonably foreseeable future.
The Tribunal has assessed independent country information relevant to the applicant’s claims.
The Tribunal has carefully considered independent country information which indicates LGBTQIA+ persons in Malaysia experiencing discrimination.[2] 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.[3] Society in Kuala Lumpur is generally more permissive of LGBTQIA+ persons compared to East Coast peninsula Malaysia or Sarawak and Sabah [emphasis added].[4] Discrimination occurs in areas including employment, housing, and access to some government services.[5] Discrimination is more prevalent for Malays, transgender persons, and LGBTQIA+ individuals in poorer settings or rural areas.[6]
[2] 'BTI 2024 Country Report - Malaysia', Bertelsmann Stiftung, 19 March 2024, p.28; 'Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, p.407; 'Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State, 22 April 2024, section 6, pp.20-21; 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, section 3.148, p.35,
[3] DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, Para: 3.147
[4] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, section 3.147, p.35
[5] Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State, 22 April 2024, section 6, pp.20-21
[6] DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, section 3.148, p.35,
The Tribunal has taken into account the DFAT Country Information Report (24 June 2024), and in particular the following report on “Sexual Orientation and Gender Identity” in Malaysia:
3.126 As a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent. The Malaysian Penal Code defines ‘carnal intercourse against the order of nature’ as involving the introduction of the penis into another person’s anus or mouth (to the point of penetration). Oral heterosexual sex performed upon a man is also an offence, although DFAT is not aware of any prosecutions for this act; oral sex performed upon a woman is not an offence.
3.127 Across Malaysia there are 52 laws that criminalise different forms of LGBTQIA+ behaviour. Prosecutions have taken place under these laws, including under Section 377A/377B (Unnatural Offences) of the Penal Code, which includes penalties of whipping and up to 20 years in prison. Numerous state-level syariah-based laws prohibit 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. This means that the federal law stands, but that State laws against same-sex sexual activity are invalid. In-country sources reported in 2022 that three states added new laws relating to LGBTQIA+ people based on syariah over the last five years.
3.128 While government stances on LGBTQIA+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and penal code offences. These laws prohibit males cross-dressing and/or presenting as women, and in some cases, females cross-dressing and/or presenting as men.
3.129 Successive Malaysian Prime Ministers have made anti-LGBTQIA+ statements. Most recently, in January 2023, Prime Minister Anwar said recognising LGBTQIA+ identities and behaviours ‘will not happen, and God willing under my administration this is not going to happen.’ In-country sources told DFAT that the environment for LGBTQIA+ people had not improved under the Anwar Government.
3.130 JAKIM and other state level religious authorities have occasionally conducted raids on LGBTQIA+ events. On 30 October 2022, RMP and the Federal Territories Islamic Religious Department (JAWI) raided a Halloween event attended by members of the LGBTQIA+ community in Kuala Lumpur and arrested at least 20 people. Malaysian NGO Justice for Sisters reported in 2022 that 24 people were being investigated for offences including: being males posing as women; ‘encouraging vice’; and ‘indecent acts’ in a public place. State officials have conducted raids on private premises, sometimes accompanied by members of the RMP. Some in-country sources reported that authorities conducted such raids as a means of creating income through extortion and blackmail.
3.131 Members of the LGBTQIA+ community are typically prosecuted under state-based syariah legislation rather than federal law [emphasis added]. In September 2018, a syariah court in Terengganu state sentenced two women to six strokes of the cane and a fine of MYR3,300 (AUD 1,100) after convicting them of having lesbian sex. The caning, carried out in a courtroom in front of 100 witnesses, was the first such sentence to be ordered in relation to a LGBTQIA+ case since 2010. While the investigation of such offences is reasonably common, and prosecutions have occurred, successful prosecutions are rare.[7]
[7] DFAT Country Information Report Malaysia (24 June 2024), Paragraphs: 3.126 to 3.131.
The Tribunal has taken into account the DFAT Country Information Report (24 June 2024), and in particular the following report on “Gay men and men who have sex with men” in Malaysia:
3.135 In-country sources reported that gay men and men who have sex with men sometimes experienced employment discrimination. Visibly effeminate gay men are reportedly more likely to suffer harassment and discrimination. Many jobs, including all public service jobs, are subject to compulsory health screening. If an employer finds out a gay man has HIV, his employment will be terminated (the HIV prevalence rate for gay men in Malaysia is around 20 per cent). In 2023, the Malaysian Ministry of Health identified men having sex with men as the main vector for HIV transmission, superseding intravenous needles. Pre-exposure prophylaxis (PreP) is available in public clinics, although there are campaigns against it due to its association with gay men.
3.136 In country sources reported in 2023 that an administrative circular was circulated in schools permitting caning of LGBTQIA+ students, framing it as a correctable ‘disorder’. In-country sources also reported cases of gay students being expelled from school for their sexuality. People stopped by police have sometimes had their phones checked for LGBTQIA+-related messages and dating apps such as Grindr. Such checks were reportedly particularly prevalent during COVID-19 pandemic lockdowns.
3.137 Domestic violence is also a serious problem within the gay community; where police are involved, gay men can face blackmail and extortion from police officers. Domestic violence legislation does not provide protection for same-sex couples.[8]
[8] DFAT Country Information Report Malaysia (24 June 2024), Paragraphs: 3.135 to 3.137
The Tribunal has taken into account the following report from the UK Government’s “Guidance - Country policy and information note: sexual orientation and gender identity or expression, Malaysia - Updated July 2024”. In particular, the Tribunal has considered the following Executive Summary of that report:
Malaysia is a culturally and religiously conservative country. The constitution does not specifically protect against discrimination based on sexual orientation, gender identity and expression. Same-sex sexual acts are criminalised through the application of various offences under the penal code throughout Malaysia and under state Sharia laws, applicable to Muslims. There is no available data on the number of lesbian, gay, bisexual, trans and intersex (LGBTI) persons prosecuted for offences under the penal code although sources consider prosecutions to be rare. In general, LGBI persons are unlikely to be at risk of prosecution under the penal code, although if it were applied it would be disproportionate and discriminatory.
LGBI persons face harassment, arbitrary arrest and detention and police sometimes perpetrate and condone violence against individuals including in custody.
In general, whilst LGBI persons face official discrimination, treatment by state actors is not sufficiently serious by its nature and/or repetition, or by an accumulation of various measures which is sufficiently severe to amount to persecution.
Persons who are likely to be able to demonstrate a real risk of treatment by state actors that amounts to persecution are:
·     Muslim LGBI persons accused of same-sex sexual acts who are likely to be prosecuted under Sharia law
·     trans persons, particularly Muslims, who are open about their gender identity
·     those likely to be forced to undergo conversion therapy practices (CTPs)
Societal attitudes mean there is a negative view of same-sex relationships and a strong social taboo in relation to LGBTI issues among Muslims. LGBTI persons face discrimination, stigma, threats, and violence; including sexual violence from family members which varies depending on their socioeconomic class, religion, place of residence, and how they present themselves. Well-educated, wealthier LGBTI people in urban areas are less likely to have to conceal their sexual orientation from their family and friends.
… … …
In general, whilst LGBI persons face some societal discrimination this treatment is not sufficiently serious by its nature and/or repetition, or by an accumulation of various measures which is sufficiently severe to amount to persecution.
… … …
In general, the state is able but is not willing to offer effective protection.[9]
[9] Country policy and information note: sexual orientation and gender identity or expression, Malaysia, July 2024 (accessible) - GOV.UK
The Tribunal has taken into account the following extract from the '2023 Country Reports on Human Rights Practices - Malaysia', US Department of State, 22 April 2024:
EXECUTIVE SUMMARY
There were no significant changes in the human rights situation in Malaysia during the year.
Significant human rights issues included credible reports of: cruel, inhuman, or degrading treatment by government entities; arbitrary arrest or detention; serious problems with the independence of the judiciary; arbitrary or unlawful interference with privacy; serious restrictions on freedom of expression and media freedom, including censorship or enforcement of criminal libel laws to limit expression; serious restrictions on internet freedom; substantial interference with the freedom of peaceful assembly and freedom of association; restrictions on freedom of movement within the country and on the right to leave the country; refoulement of refugees to a country where they would face torture or prosecution; serious government corruption; serious government restrictions on or harassment of domestic human rights organizations; extensive gender-based violence, including female genital mutilation/cutting; substantial barriers to reproductive health services; trafficking in persons; laws criminalizing consensual same-sex sexual conduct between adults, which were enforced; and violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons [emphasis added]
… … …
The Tribunal has also found significant, and therefore finds relevant to the applicant’s claims, the other independent country information reports cited above reporting on how men identifying as homosexual are impacted in Malaysian society and by authorities generally. In particular, the Tribunal finds significant the following passage from the ‘Executive Summary’ of the '2023 Country Reports on Human Rights Practices - Malaysia', US Department of State, 22 April 2024:
Violence and Harassment: Observers reported violence against lesbian, gay, bisexual, Acts of Violence, Criminalization, and Other Abuses Based on Sexual Orientation, Gender Identity or Expression, or Sex Characteristics
Criminalization: All same-sex sexual conduct was illegal under both federal law and state sharia provisions. Under the law, sodomy and oral sex acts were classified as “carnal intercourse against the order of nature” for which the federal penal code imposed a sentence of 20 years in prison and mandatory caning, although it was not actively enforced. State sharia provisions, enforced by state Islamic religious departments and applicable only to Muslims, permitted caning for acts such as consensual same-sex sexual relations and for the offense of “a man posing as a woman.”
Violence and Harassment: Observers reported violence against lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) persons was common, and that police at times perpetrated and condoned such violence, including against individuals in custody. According to local advocates, imprisoned transgender women usually served their sentences in prisons designated for men and both police and inmates abused them sexually and verbally.
In October police found a trans woman dead with injuries to the head and face in a pedestrian tunnel in Johor State. Observers noted at the time this was one of five known cases of transgender deaths of unnatural causes during the year.
Discrimination: The law did not prohibit discrimination based on sexual orientation, gender identity or expression, or sex characteristics and did not recognize LGBTQI+ individuals, couples, or their families. LGBTQI+ persons reported discrimination in employment, housing, and access to some government services because of their sexuality. The government did not recognize same-sex marriage nor grant LGBTQI+ couples and their families the same rights accorded to other couples.

The Tribunal has also considered State Syariah LGBTQI+ laws which are enforceable in [State] where the applicant is from. In particular it is mindful of the application of Section 76 of Syariah Criminal Offences Enactment 1995 which states: “Whoever has sexual intercourse against the order of nature with any man, woman or animal, shall be liable to takzir and shall, on conviction, be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to caning not exceeding six strokes or to any combination of such punishment.”
Given the applicant’s claims and evidence in support of his claims, and given the country information before it, the Tribunal finds that there is a real chance that the applicant will face serious harm from his former partner’s family, from the police and authorities in [State], and his community in [State] for reason of being a man who is homosexual and who identifies as a Malay, Muslim homosexual man. Country information above supports the claims that this serious harm will involve systematic and discriminatory conduct.
Considering the above sources, the Tribunal finds that there is a real chance that if the applicant returns to Malaysia, he will also face societal violence, harassment, and ill-treatment in [State] in the reasonably foreseeable future. This will be compounded and elevated by the familial connection he has to his [relative] who was charged, convicted and jailed in a profile incident involving the homosexual relations with a teenage boy in the applicant’s home area.
The Tribunal’s real chance findings are also strengthened by the UK Government’s “Guidance - Country policy and information note sexual orientation and gender identity or expression, Malaysia, Updated July 2024”, where it states that “[p]ersons who are likely to be able to demonstrate a real risk of treatment by state actors that amounts to persecution are …Muslim LGBI persons accused of same-sex sexual acts who are likely to be prosecuted under Sharia law”.[10]
[10] Country policy and information note: sexual orientation and gender identity or expression, Malaysia, July 2024 (accessible) - GOV.UK
The Tribunal acknowledges that enforcement of laws against same-sex relations is rare. However, taking into account the reported incidents of official and societal treatment of LGBTQIA+ persons and the increasing hostility toward LGBTQIA+ persons as a result of government policies, the Tribunal finds that there is a real, as opposed to remote or far-fetched, chance of the harm occurring. Based on the country information discussed above, the Tribunal finds that the applicant would face a real chance of such harm in all areas of Malaysia, given that he can also be identified as being a relative of [Mr C] who was arrested, convicted and jailed for homosexual relations with a male teenager, and that this matter was of public importance to be given national media time.
The Tribunal finds the applicant has a well-founded fear of persecution for reasons of his membership of a particular social group, namely ‘homosexual men in Malaysia’, if he were to return to Malaysia in the reasonably foreseeable future, thereby fulfilling s 5J of the Act.
The Tribunal finds this particular social group, namely ‘homosexual men in Malaysia’, to satisfy the definition in s 5L as the characteristic of sexual orientation is shared by each member of the group, including the applicant, and is not a fear of persecution, and the characteristic is so fundamental to the applicant’s identity that he should not be forced to renounce it. The Tribunal finds this to be the essential and significant reason for the persecution, as required by s 5J(4)(a) and that the persecution involves systematic and discriminatory conduct, as required by s5J(4)(c), as it is targeted toward members of the group and is non-random. The Tribunal finds the persecution to involve serious harm, as required by s 5J(4)(b), as the harm includes a threat to the applicant’s liberty and significant physical harassment or ill-treatment.
The Tribunal finds that effective protection measures, as defined in s 5LA, would not be available to the applicant given the country information above, and particularly the report from the UK Government’s “Guidance - Country policy and information note: sexual orientation and gender identity or expression, Malaysia - Updated July 2024 stating: “In general, the state is able but is not willing to offer effective protection”.[11]
[11] Country policy and information note: sexual orientation and gender identity or expression, Malaysia, July 2024 (accessible) - GOV.UK
The Tribunal finds that the applicant could not take reasonable steps to modify his behaviour to avoid a real chance of persecution given that he would have to conceal his true sexual orientation, which he cannot do given that his true sexual orientation as a homosexual man is fundamental to his identity or conscience.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside 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:       25 June 2025
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.
…