2013618 (Refugee) - [2025] ARTA 1570

2013618 (REFUGEE) [2025] ARTA 1570 (13 MAY 2025)

DECISION AND

REASONS FOR DECISION

Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2013618
Tribunal:General Member J Lock
Date:13 May 2025

Place:Adelaide
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 13 May 2025 at 12:11pm

CATCHWORDS
REFUGEE – Protection Visa – Malaysia – particular social group – gay men in Malaysia – decision under review remitted

LEGISLATION

Migration Act 1958 (Act), ss 5, 36, 65, 367, 499

Migration Regulations 1994(Act), 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 4 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 23 December 2019. The applicant claimed to fear persecution on the grounds of his political opinion and claimed he was a wanted member of the SSKU-Sabah, a political organisation seeking to secede from Malaysia. The delegate refused to grant the visa as they were satisfied there was no real chance that the applicant will face serious harm in Malaysia as a result of his political opinion and that there was no real risk of the applicant facing significant harm as a necessary and foreseeable consequence of removal from Australia to Malaysia.
The applicant appeared before the Tribunal on 3 December 2024 (the hearing) to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Malay and English languages. At the hearing, the applicant stated he did not hold any fear of harm on the basis of his politicial opinion and was not a member of the SSKU-Sabah. The applicant raised a new claim that he feared harm on the basis of his sexual orientation as a gay man.
Following the hearing, the applicant was invited by email dated 11 December 2024 to provide further information to the Tribunal to support his claims.
The applicant provided further information to the Tribunal in submissions dated 17 December 2024.
The applicant was invited to attend a second hearing on 28 January 2025 to address issues arising from the submissions. The applicant declined to attend a further hearing, and the Tribunal put these issues to the applicant in a letter dated 29 January 2025.
The applicant provided further written submissions to the Tribunal on 25 February 2025.

BACKGROUND

The applicant was born in Sabah, Malaysia and is [age] years old. He is a citizen of Malaysia. The applicant gave evidence to the Tribunal that he has four [siblings]. The applicant’s parents both continue to live in Sabah. The applicant’s sister lives in Australia with her husband and son. The applicant lives with his sister and her family in Australia.
The applicant grew up in Sabah and after leaving school, worked in a factory from 2015 – 2017. In 2018 the applicant moved to Kota Kinabalu, where he worked as a [occupation] at [a workplace]. He worked there until leaving Malaysia to travel to Australia. The applicant arrived in Australia on [date] October 2019 on a visitor visa (subclass UD-601). The applicant lodged an application for a protection visa on 23 December 2019.
The Tribunal accepts the above to be true.

Evidence before the Department

The evidence before the Department of Home Affairs (the Department) consisted of:
·     the applicant’s protection visa application lodged 23 December 2019 (the protection visa application)
·     personal identification documents provided by the applicant to the Department
·     records obtained from the Department regarding the applicant’s travel to and from Australia
A delegate of the Minister of Home Affairs made a decision dated 4 September 2020 refusing to grant the applicant a protection visa.

Evidence before the Tribunal

The evidence before the Tribunal included:
·     evidence given by the applicant at the hearing held on 3 December 2024
·     the applicant’s written submissions provided to the Tribunal on 17 December 2024, including photographs of the applicant and others and screenshots of posts from the [dating] app
·     the applicant’s further submissions provided to the Tribunal on 22 February 2025

Evidence at the hearing

At the hearing the applicant gave evidence that he grew up in a district in Sabah, Malaysia in a Muslim family and that he is of the Islamic faith. When he was about [age] years old he moved to Kota Kinabalu, the state capital of Sabah. He got to know a man, [Mr A] who was two years older than him. They met through friends. [Mr A] asked him to work at the [workplace] where he worked. The applicant began working there, and in the beginning they were just friends. [Mr A] then asked the applicant to live with him. The applicant moved in with [Mr A] and they lived in a rented [house]. They became close and entered into a same-sex relationship.
The applicant gave evidence that he now identifies as a homosexual man[1]. He did not identify as gay prior to forming the relationship with [Mr A]. He stated that only he and [Mr A] knew about their relationship and they conducted their relationship secretly. He explained that the Malaysian government forbids same-sex relationships and his religion of Islam forbids same-sex relationships. The applicant did not tell his friends or family about his relationship with [Mr A].
[1] The applicant identified himself as “homosexual man” and “gay man” in his evidence to the Tribunal at the hearing and in his written submissions. The term “gay man” will be used in this decision when referring to the applicant’s identity.
The applicant stated that he and [Mr A] lived together for 18 months. They made plans to move to Australia to live together. The applicant became aware that people around them were forming the perception that the applicant and [Mr A] were homosexual – saying they were “gay” and asking why the applicant did not want to choose a lady as a partner. The applicant reports this made him feel sad and not motivated. It was around this time the applicant and [Mr A] decided to move to Australia. The applicant reported he did not experience any direct harm in Malaysia, but he was afraid his parents would abandon him and he would not be accepted by people around him.
The applicant explained he wanted to come to Australia as his sister was living in Australia and he was able to live with her.
The applicant stated that initially he and [Mr A] had planned to come to Australia together, but they did not have enough money. The applicant departed Malaysia alone, arriving in Australia in October 2019. This was just before the outbreak of the COVID-19 pandemic. After the applicant arrived in Australia border closures started. The applicant and [Mr A] continued a long-distance relationship. They maintained the relationship by telephone and video calls, but not by emails.
The applicant stated the relationship with [Mr A] ended in 2021 as they had waited too long. The applicant has had no contact with [Mr A] since that time and they both lead separate lives. The applicant stated he has changed his phone number and his old phone was damaged so he has no record of his communication with [Mr A].
The applicant stated he lives with his sister and her husband and their child [in] South Australia. His sister and brother-in-law are Malaysian citizens. The applicant works on farms and helps his family financially so his siblings can continue their education.
The applicant gave evidence at the hearing that he has had no other relationships since separating from [Mr A]. The applicant stated that he continues to identify as a gay man and anticipates having relationships with men in the future. He felt he could not live without a same-sex relationship and he prefers a male partner. The applicant stated “I prefer male – understands more than a female”. He has not told his sister or her family about his sexuality as he fears she will not accept any relationships he may have with men.
The applicant stated he did not feel his rights would be protected in Malaysia and he would be labelled as someone who is not right in the mind. He stated his religion and his country forbid homosexuality.
When the Tribunal asked the applicant why he did not claim protection on the grounds of his sexuality at the time of his protection visa application, the applicant stated that he did not know that he was claiming protection at that time and was still new. He stated he only became aware he had applied for a protection visa 3-4 years after the application. The applicant stated that a contractor named [Mr B] assisted him with the application. He was just told he needed a visa to work. The applicant said that at the time he did not know anything, he knew he wanted to come to Australia to work and live with his partner.
The applicant confirmed he received a copy of the delegate’s decision dated 4 September 2020 but he did not know what it was about as he could only read and understand a little bit of English. He gave the letter to [Mr B], who took care of it. When asked why he was only raising claims on the grounds of sexuality for the first time at the hearing, the applicant stated that previously he did not know the ways.

Applicant’s submissions dated 17 December 2024

In submissions provided to the Tribunal by the applicant on 17 December 2024, the applicant confirmed his claim to be a gay person and to fear criticism and prejudice from people around him in Malaysian and to fear legal punishment in Malaysia if he were to return.
The applicant submitted that when he was first in Australia he had no knowledge about visas. A contractor named [Mr B] helped him manage the protection visa application. It was only after being in Australia for three years that the applicant found out about the visa.
The applicant confirmed he was in a same-sex relationship with [Mr A] in Malaysia from 2018, and that they lived together. They kept their relationship quiet but other friends started to notice and they started planning to start a new life in a place that would accept them, specifically Australia.
The applicant submitted they had both planned to come to Australia together but could not due to financial problems. The applicant came to Australia first in October 2019, with the plan that [Mr A] would follow later. However in March 2020 countries around the world began to close borders due to the COVID-19 outbreak. Initially they endured a long-distance relationship which lasted almost a year. Then they each decided not to continue the relationship due to the distance factor and the difficulty of surviving emotionally.
The applicant provided two photographs of himself and a man he states is [Mr A] – one he stated was in their rented house in Kota Kinabalu, and one he stated was with [Mr A] and two other colleagues at the [workplace] where they worked.
The applicant submitted he works hard and tries to live a normal life in Australia to deal with the sadness and feelings of loneliness. The applicant provided evidence of starting to look for a partner through the [dating] app, as an application popular among men who are looking for same-sex / gay partners, and finding compatibility with some new friends through the [dating] app. The applicant included screenshots of what he claimed to be conversations between him and other people on the [dating] app. There was nothing to confirm that the screenshot of the conversations were from the applicant’s [dating] account. The profile picture that appears on a screenshot of another page from the [dating] app is indistinct and does not clearly identify the applicant. While the Tribunal accepts the applicant may have a [dating] account, it places no further weight on this evidence.
The applicant stated he has started to meet new gay friends and experience a feeling of gratitude because he does not have to hide his identity as a gay man.
The applicant submitted that gay people want to be accepted by society, but the situation in Malaysia is impossible for people like him. He stated that he became aware of his sexuality since meeting [Mr A]. He realised his feelings for men were getting stronger in his early teens but realised that with a traditional family background, he would get very strong opposition from his family. He stated that when he tried to be more open about his feelings as a gay man, he was laughed at and made fun of.
The applicant submitted that the few human rights activists in Malaysia who try to safeguard the fundamental rights of the LGBT community are rejected by the Malaysian government, especially the Muslim political party and the dominant Muslim community.
The applicant submitted that gay people are looked on as disgusting in Malaysia as it is commonly believed that gay people are responsible for bringing sexually transmitted diseases. Gay people are not regarded as normal in Malaysia and are labelled as child molesters, which the applicant strongly rejects. He stated this caused him anxiety while living in Malaysia. The applicant was extremely worried that if he was reported to authorities as being gay, he could be sentenced to imprisonment for at least 20 years and caning.
The applicant reported experiencing extreme depression in Malaysia as a result of his fear of being afraid of reported to the authorities. This caused him to live quietly and living in a state of paranoia.
The applicant expressed concern that gay people will never be recognised or allowed at all in Malaysia, and stated he is worried about a dark future in Malaysia. He fears losing the freedom of life that he enjoys in Australia. He noted that there is a high level of religious extremism in a majority of the Muslim community in Malaysia and referred to the pain of being cursed as an inhabitant of hell.
The applicant expressed a view that the Malaysian government should immediately stop sponsoring, funding, and otherwise supporting conversion practices and should, in consultation with LGBT[2] community groups, educate public officials, including police, judges, and government staff, on gender, diversity, and human rights. The applicant advocated that at the same time, the government should repeal laws that discriminate on the basis of sexual orientation and gender identity. The applicant noted it is difficult for Malaysia to change the perception towards the LGBT people due to its status as an Islamic State.
[2] the Tribunal understands that the applicant is referring to the lesbian, gay, bisexual and transexual community
The applicant stated that he would be subject to discrimination and prosecution if he were to return to Malaysia due to his lifestyle. He likened it to returning to a torturous nest - a life without freedom and full of discrimination.
The applicant cited information from the following sources in his submissions:
a.Meyer, I H Prejudice, Social Stress, and Mental Health in Lesbian, Gay, and Bisexual Populations: Conceptual Issues and Research Evidence (September 2003) Psychol Bull 129(5):674–697 Prejudice, Social Stress, and Mental Health in Lesbian, Gay, and Bisexual Populations: Conceptual Issues and Research Evidence - PMC
b.Human Dignity Trust: Malaysia (as at 17 December 2024) London, webpage: Malaysia | Human Dignity Trust
c.United States Department of State 2018 Country Reports on Human Rights Practices: Malaysia Malaysia - United States Department of State
d.Equal Rights Trust Washing the Tigers – Addressing Discrimination and Inequality in Malaysia (November 2012) ERT Country Report Series: 2, London Malaysia CR 1.pdf
e.American Psychological Association, Task Force on Appropriate Therapeutic Responses to Sexual Orientation. (2009). Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation. therapeutic-response.pdf
f.Department of Foreign Affairs and Trade DFAT Country Information Report Malaysia (24 June 2024) Australia
The Tribunal has considered the information cited by the applicant against the sources of that information, where it has been provided by the applicant. There was some information provided by the applicant where reference to the source was not provided. The Tribunal has regarded this information as submissions made by the applicant. The applicant also included links to two articles[3] that were broken and could not be accessed by the Tribunal. The Tribunal has not considered this material. The applicant also provided a link to a Malaysian government website page[4] that appears to have been posted on 25 November 2018. As the website page is in Malay and no English translation was provided, the Tribunal has not considered this material.
[3] shatter-reform-hopes-2023-08-21/;
[4] Portal Rasmi JAKIM - Warga ILIM Dekati Masyarakat Setempat
In any event, the country information provided by the applicant is broadly consistent with that considered by the Tribunal and referred to below. The Tribunal’s findings based on the country information as a whole are discussed below.

Tribunal’s request for further information dated 29 January 2025

The Tribunal wrote to the applicant by email dated 29 January 2025, in light of the applicant advising he would not attend a further hearing listed by the Tribunal. The Tribunal requested further information from the applicant in relation to the following:
a.whether the applicant had any assistance in preparing his submissions dated 17 December 2024, and if so, the nature of that assistance
b.whether the applicant could provide any further information regarding any same sex relationships he may have had in Australia (noting he was not required to provide any details or images of sexual activity), and how he had been able to conduct any relationships without his sister’s knowledge
c.whether the applicant had expressed his views that the Malaysian government should stop supporting gay conversion practices publicly in Australia or Malaysia

Applicant’s further submissions dated 21 February 2025

The applicant provided further submissions to the Tribunal by letter dated 21 February 2024.
The applicant stated that he was assisted by a friend to prepare the submissions dated 17 December 2024, but only to the extent of translating the words into the English language.
In relation to whether the applicant had engaged in any same sex relationships in Australia, the applicant stated that he was in the process of getting to know someone casually, after engaging with an online platform for gay men. He had not engaged in a same sex relationship since being in Australia. He referred to having been alone for so long and feeling lonely and a sense of needing to move on. He stated it had not been easy, having grown up in a traditional and typical Malaysian Muslim way of life and having had a very high sense of shame. He referred to that being a reason for why it has taken him some time to take steps towards starting a relationship. He spoke of looking for a loving relationship, not just a casual sexual relationship.
The applicant also stated that talking about relationships is not common amongst his family members, and there is a strong taboo around talking about couples and sexual relationships outside of marriage within his family. In the Malaysian community, premarital sex and same-sex relationships are illegal and should not be discussed. The applicant explained this makes it difficult for him to be honest with his sister about being gay and why he still hides his identity as a gay man. He has only taken steps to find a partner through online applications.

The applicant stated he will let time dictate his journey until when his sister and family realise he is gay. This has haunted him for a long time. The loneliness is killing him from the inside.
The applicant stated that he had never made any public statement about his opinions on LGBT issues either in Malaysia or Australia. He stated that when he was in Malaysia, the applicant was aware that LGBT issues were very sensitive and that supporting LGBT people was an offence under both national law and social law.
The applicant referred in his submission to the following article:
a.Lim, I “Gay is OK!” book remains banned in Malaysia after failed Federal Court bid by publisher 28 February 2024, Malay Mail: ‘Gay is OK!’ book remains banned in Malaysia after failed Federal Court bid by publisher, author | Malay Mail
The applicant included in his submission an English translation of an article that was published in 2019 in Malay in MyMetro: Selar perhimpunan LGBT. The applicant submitted the article covered the response of the Malaysian Islamic Development Department (Jakim) to a Women’s Day Parade in Kuala Lumpar in support of lesbian, gay, bisexual and transgender people, which was to confirm that LGBT people are not accepted in Malaysia and any efforts to promote LGBT rights in Malaysia are prohibited.
The applicant stated that the actions of the authorities referred to in the article made him afraid to speak up or march together with LGBT activists in Malaysia.
The applicant provided a link to a video on YouTube he claims shows that LGBT has no place in Malaysia, and LGBT groups are denounced openly. The Tribunal was unable to access the link. However, the applicant’s submission about the content of the video is consistent with country information considered by the Tribunal which is discussed below.
The Tribunal has considered the country information provided by the applicant which is discussed further below.
The applicant stated that his main fear is dying of loneliness and that he would not have a place in Malaysia if he lived as a gay man. Given the Malaysian government’s aggressive acts towards LGBT issues, he does not have the guts to say anything publicly to defend LGBT rights, or what is more, to live openly as a gay man. He referred to the three examples in the media provided in his submissions as proving there is no room for LGBT people in Malaysia, and that revealing himself is a dangerous act because he would face public criticism and legal punishment.
The applicant stated that in the few years he has been in Australia he has felt calm and that he does not have to live a pretend life and that no one is being judgmental towards him in Australia. He hopes to move on to a happier life in Australia and the acceptance of LGBT people in Australia made him determined to apply for the protection visa.

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 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.

EVIDENCE AND CONSIDERATION

The issue in this case is whether the applicant faces a real chance of harm if he were to return to Malaysia because he is a gay man or because of his anti-government / pro-LGBTQI political opinion. If not, the issue is whether the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of his removal from Australia to Malaysia.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.

Country of nationality

The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which was provided to the Department and Tribunal. The Department assessed the passport and found no evidence that it was a bogus document. The applicant has consistently stated that he is a citizen of Malaysia. The Tribunal finds that he is a Malaysian citizen. The Tribunal has assessed his claims against Malaysia as the country of nationality and the receiving country.

CLAIMS

In the protection visa application the applicant’s claims were that he was a member of a political organisation “SSKM – Sabah Group” and that he feared persecution on the grounds of his political opinion regarding independence for Sabah if he returned to Malaysia.
At the hearing, the applicant gave evidence that he did not complete the application for a protection visa, that it was completed by another person and he was not aware of the claims made in the application. He confirmed that was not a member of a politicial organisation SSKM – Sabah Group and was not claiming protection on the grounds of a political opinion regarding independence for Sabah.
The Tribunal finds that the applicant does not fear being persecuted for reason of a political opinion regarding independence for Sabah.
At the hearing, the applicant stated that he is a gay man and he was claiming protection on the grounds of his sexual orientation. The Tribunal has assessed the applicant’s claim for protection on the basis of his membership of a particular social group, specifically “a gay man in Malaysia”.
In his submissions dated 17 December 2024, the applicant expressed a view that the Malaysian government should stop supporting gay conversion practices and instead educate public official, police, judges and government staff on gender diversity and human rights. The applicant advocated for the repeal of laws that discriminate on the basis of sexual orientation and gender identity.
The Tribunal has also considered whether the applicant has any claims for protection on the basis of these views. Country information discussed below indicates that the Malaysian government supports gay conversion practices and laws in Malaysia do not prohibit discrimination on the basis of sexual orientation and gender identity.[5] On that basis, the Tribunal has characterised the applicant’s views as “anti-government / pro-LGBTQI rights” and assessed whether the applicant has a claim to protection on the basis of this as a political opinion.
[5] U.S Department of State 2018 Country Reports of Human Rights Practices: Malaysia Bureau of Democracy, Human Rights and Labor Malaysia - United States Department of State

Sexual orientation

The applicant did not make a claim for protection on the basis of his sexual orientation or claim to be a gay man in his protection visa application lodged on 23 December 2019. These claims were not before the delegate of the Department when the decision was made on 4 September 2020. The first time the applicant raised these claims was in the hearing held on 3 December 2024.
Section 367A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of the claim if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised before the primary decision was made.
At the hearing, the applicant gave evidence that he did not complete the application for a protection visa, that it was completed by another person and he was not aware of the claims made in the application.
In submissions dated 17 December 2024, the applicant stated it was only after being in Australia for three years that he found out about the protection visa. Prior to that he understood he just thought he was applying for a work visa.
The Tribunal is mindful of the difficulties faced by applicants who are newly arrived in the country, with limited knowledge of the English language, understanding Australia’s protection system and its requirements. The Tribunal accepts that the applicant was assisted by a person with whom he worked to submit his protection visa application, and at that point had limited knowledge of the information contained in that application and understood it was for the purposes of obtaining a work visa.
The Tribunal has had regard to the Departments’ Guidelines on Gender and Sexual Orientation in assessing the applicant’s claims and is mindful that an applicant making claims related to sexual orientation may delay making sensitive claims until they have to do so.[6] The applicant claims to have hidden his sexual orientation in Malaysia because he feared imprisonment and caning. The applicant was not offered the opportunity to attend an interview with the Department to discuss his claims. The Tribunal finds it reasonable that the applicant did not disclose his sexual orientation to the contractor, [Mr B], at the time his protection visa was lodged, as he was not aware of the nature of the application and thought it was to obtain a work visa.
[6] Department of Home Affairs Gender and Sexual Orientation (15 August 2021) [unpublished procedural instruction] Refugee and International Law Section, Australia
The Tribunal is satisfied the applicant has a reasonable explanation as to why he did not raise the claim that he is a gay man before the delegate made the decision on 4 September 2020. The Tribunal does not draw any inference unfavourable to the applicant’s claim from his failure to raise the claim prior to the decision being made.
The Tribunal is required to make a finding on the applicant’s sexual orientation based on the evidence before it. This consists of the applicant’s evidence given to the Tribunal at the hearing and in his submissions. The applicant states he is a gay man. He has given evidence of being in a same-sex relationship for 18 months with a man, [Mr A], in Malaysia. The evidence given by the applicant at the hearing regarding his relationship is consistent with the information provided in his written evidence and submissions provided on 17 December 2024. The applicant provided further detail in his written submissions of his realisation of his sexual orientation and his relationship with [Mr A]. The applicant provided two photographs of himself with a man he claims to be [Mr A], one he claims at their apartment and one with colleagues at work. This is consistent with the applicant’s account that he and [Mr A] lived and worked together.
The applicant stated that he has not had any same-sex relationships over the past four and a half years he has been living in Australia. On one level this seems inconsistent with the applicant’s statement that he has felt a sense of acceptance in Australia as a gay man and not needing to live a pretend life. In that sense, it seems unlikely that the applicant would not have engaged in same-sex relationships in Australia. However, the applicant has given evidence, that the Tribunal accepts, that he lives with his sister and fears she will not accept him if she knew he is a gay man. The applicant also gave evidence of taking time to overcome the sense of shame around his sexual identity that he had from growing up in a traditional Malaysian Muslim family and seeking a loving relationship not just casual sexual relationships.
The applicant states that he is engaging with people online on the [dating] app and is now getting to know someone casually. For the reasons given above, the Tribunal accepts the applicant may have a [dating] account, but places no further weight on screenshots provided to the Tribunal by the applicant.
The Tribunal has considered the factors weighing against the acceptance of the applicant’s claim to be a gay man, specifically the passage of nearly four since arriving in Australia on [date] October 2019 until raising his claims on the basis of his sexual orientation with the Tribunal on 3 December 2024. The Tribunal has applied the same reasoning as set out above in paragraph 76, that an applicant making claims related to sexual orientation may delay making sensitive claims until they have to do so. The Tribunal has also had regard to the applicant’s reported sense of shame regarding his sexual orientation from having been raised in a traditional Malaysian Muslim family and the fact that he continues to live with his sister and her family who are unaware of his sexual orientation. The Tribunal is not satisfied, on balance, that the applicant’s delay in raising his claim to be a gay man means his claim is not credible.
A further factor weighing against the applicant’s claim is the lack of any corroborating evidence, other than the applicant’s own evidence and two photographs, of the applicant having been in a same-sex relationship. The Department’s Gender and Sexual Orientation guidelines[7] state that evidence of sexual identity will largely consist of an applicant’s personal account of their experiences, particularly if the applicant was not open about their sexual orientation before leaving their country of origin. An assessment of the credibility of the applicant’s claims is then based on the overall plausibility and consistency of the applicant’s account, in conjunction with available country information.
[7] Department of Home Affairs Gender and Sexual Orientation (15 August 2021) [unpublished procedural instruction] Refugee and International Law Section, Australia
The applicant’s statements regarding his sexual identity and sexual orientation as a gay man are coherent and plausible. The applicant’s stated need to hide his identity in Malaysia as a gay man for fear of criticism and prejudice from people around him, and legal punishment including imprisonment and caning is consistent with the country information that is discussed below.
The applicant’s account of being in a same sex relationship with [Mr A] in Malaysia appears credible. The applicant has given evidence that he is a gay man and hopes to engage in same-sex relationships in the future. In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a gay man.

Anti-government / pro-LGBTQI[8] rights political opinion

[8] referring collectively to people who identify as lesbian, gay, bisexual, transgender/gender diverse, intersex, and / or queer

In his submissions dated 17 December 2024, the applicant expressed a view that the Malaysian government should stop supporting gay conversion practices and instead educate public official, police, judges and government staff on gender diversity and human rights. The applicant advocated for the repeal of laws that discriminate on the basis of sexual orientation and gender identity. The Tribunal asked the applicant to clarify whether he had expressed his views publicly in Australia or Malaysia. In his response dated 21 February 2025, the applicant confirmed he had not expressed his views publicly as he was aware that LGBT issues were sensitive in Malaysia and that supporting LGBT rights is an offence under national law.
The Tribunal has characterised these views as “anti-government / pro-LGBTQI rights” and assessed whether the applicant has a claim to protection on the basis of these views as a political opinion. The Tribunal finds that the applicant has not previously expressed his anti-government / pro-LGBTQI rights in Australia or in Malaysia. The Tribunal also finds that the applicant is unlikely to advocate for LGBTQI rights or express his anti-government views if he were to return to Malaysia.

Consideration of relevant country information

The applicant referred in his submissions to the US Department of State 2018 Country Reports of Human Rights Practices: Malaysia in relation acts of violence, discrimination and other abuse based on sexual orientation.[9]
[9] U.S Department of State 2018 Country Reports of Human Rights Practices: Malaysia Bureau of Democracy, Human Rights and Labor Malaysia - United States Department of State
The applicant also included reference to the Equal Rights Trust report Washing the Tigers – Addressing Discrimination and Inequality in Malaysia (2012).[10] The Tribunal has considered material in both reports relating to discrimination based on sexual identity and, while dated, finds it is consistent with more recent country information.
[10] Equal Rights Trust Washing the Tigers – Addressing Discrimination and Inequality in Malaysia (November 2012) ERT Country Report Series: 2, London Malaysia CR 1.pdf
The Tribunal has considered relevant country information, specifically the report of the Department of Foreign Affair and Trade DFAT Country Information Report Malaysia (June 2024) (the DFAT report)[11] and the more recent US Department of State Malaysia 2023 Human Rights Report (USDOS report) [12]. The applicant also referred to the DFAT report in his submissions. Given these two reports are more recent, the Tribunal has given more weight to the country information contained in these reports in assessing the risk of harm now faced by the applicant should he return to Malaysia.
[11] Department of Foreign Affairs and Trade DFAT Country Information Report Malaysia (24 June 2024) Australia (DFAT report) DFAT country information report - Malaysia
[12] US Department of State Malaysia 2023 Human Rights Report Bureau of Democracy, Human Rights and Labor (22 April 2024) 2023 Country Reports on Human Rights Practices - United States Department of State
The DFAT Reports states that:
As a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent. The Malaysian Penal Code defines ‘carnal intercourse against the order of nature’ as involving sodomy and oral sex.[13]
…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.[14]
…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.[15]
…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.[16]
JAKIM[17] 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. … 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.[18]
…Members of the LGBTQIA+ community are typically prosecuted under state-based syariah legislation rather than federal law. In September 2018, a syariah court in Terengganu state sentenced two women to six strokes of the cane and a fine of MYR3,300 (AUD 1,100) after convicting them of having lesbian sex. The caning, carried out in a courtroom in front of 100 witnesses, was the first such sentence to be ordered in relation to a LGBTQIA+ case since 2010. While the investigation of such offences is reasonably common, and prosecutions have occurred, successful prosecutions are rare.[19]
Authorities at federal and state level have promoted so-called ‘rehabilitation’ or ‘re-education’ programs aimed at changing sexual orientation or gender identity, also known as conversion therapy. Although these programs are primarily aimed at Muslims, Christians are also targeted. According to the US State Department, as of June 2021 at least 1,733 people had attended such programs. In-country sources reported that conversion programs were ‘voluntary’ in the sense that they were ‘not court-ordered,’ but in practice people were often coerced to attend by authorities and their communities.[20]
…The level and frequency of discrimination faced by members of the LGBTQIA+ community differs according to their sexual orientation and gender identity, socio-economic status, religion, geographic location, and degree of openness regarding their sexual orientation and gender identity. Well-educated urban LGBTQIA+ individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than poorer individuals in rural areas. In-country sources reported that people in Kuala Lumpur were generally more accepting of LGBTQIA+ people than in East Coast peninsular Malaysia or Sarawak and Sabah. In-country sources also told DFAT that most transgender individuals from Sarawak and Sabah relocated to Kuala Lumpur for employment and to escape discrimination.[21]
DFAT assesses that members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence.[22]
[13] DFAT report (n 11) 32 [3.126]
[14] DFAT report (n 11) 32 [3.127]
[15] DFAT report (n 11) 32 [3.128]
[16] DFAT report (n 11) 32 [3.129]
[17] National Department of Islamic Development
[18] DFAT report 32 (n 11) [3.130]
[19] DFAT report 32 (n 11) [3.131]
[20] DFAT report (n 11) 32 [3.132]
[21] DFAT report (n 11) 35 [3.147]
[22] DFAT report (n 11) 35 [3.148]

The US Department of State report 2023 (USDOS report) identifies significant human rights issues in Malaysia in 2023 included laws criminalising consensual same-sex conduct between adults, which were enforced, and violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons.
The USDOS report refers specifically to:
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.”
Involuntary or Coercive Medical or Psychological Practices: The federal government funded retreats known as mukhayyam (rehabilitation) aimed at LGBTQI+ individuals.
In parliament on October 18, Minister in the Prime Minister’s Department (Religious Affairs) Mohd Na’im Mokhtar said the Islamic Development Department was working with other ministries to “curb perverse activities such as being a lesbian, gay, bisexual, or transgender person.” He added that during the year, 220 persons were involved in mukhayyam programs to provide religious guidance and health awareness. He said the government was “consistent” in its stance that the “practice of LGBTQI+ is unacceptable in the Islamic community.”
There was no information on the extent to which persons attended these retreats voluntarily or were coerced into attending, though anecdotally, some members of the LGBTQI+ community attended these retreats voluntarily. State religious authorities reportedly forced LGBTQI+ persons to participate in “conversion therapy,” “treatment,” or “rehabilitation” programs to “cure” them of their sexuality. “Malaysia’s current rehabilitation and criminalization approaches to LGBT people,” commonly referred to as “returning someone to the right path,” “are based neither in rights nor evidence,” said Thilaga Sulathireh, cofounder of the NGO Justice for Sisters in June.
Restrictions of Freedom of Expression, Association, or Peaceful Assembly: Depictions of or speech regarding LGBTQI+ themes were illegal; during the year several publications were banned for promoting LGBTQI+ culture.
In March police and the Federal Territories Islamic Department investigated seven participants in a women’s march, which included protestors who held pro-LGBTQI+ placards with slogans such as “Trans Women Are Women.” Authorities investigated the individuals for not providing advance notice on the gathering and for indecent or insulting words or behavior; there was no report of subsequent action against them.
In August the RMP arrested eight members of the Ahmadi Religion of Peace and Light for organizing a pro-LGBTQI+ protest in Kuala Lumpur. Police investigated the individuals for obstructing a public servant from discharging their duties, using “indecent, threatening, abusive or insulting words,” and not providing advance notice to police before the gathering. The local Islamic Department also investigated them for unspecified sharia offenses, according to media reports. [23]

Does the applicant satisfy the refugee criterion for protection?

[23] US Department of State Malaysia 2023 Human Rights Report Bureau of Democracy, Human Rights and Labor (22 April 2024) 2023 Country Reports on Human Rights Practices - United States Department of State

Risk of harm on the basis of sexual orientation

Having found that the applicant is a gay man, the Tribunal is required to determine whether there is a real chance of serious harm if he were to return to Malaysia in the reasonably foreseeable future on the basis of his membership of a particular social group as a gay man in Malaysia. The test is forward-looking.
A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. According to Mason CJ in Chan v MIEA, the expression ‘a real chance’:
… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.[24]
[24] Chan v MIEA (1989) 169 CLR 379 at 389.
The Tribunal accepts that the applicant has reported experiencing minor harm on the basis of his sexual orientation prior to leaving Malaysia in the form of questioning around his sexuality. This can be attributed to the fact that the applicant hid his sexual orientation and his same-sex relationship while living in Malaysia. The applicant stated this was out of fear of criticism and prejudice from people around him, and legal punishment including imprisonment and caning. The applicant referred to the detrimental effect this had on his psychological well-being resulting in feeling depressed and paranoid about being reported.
The country information confirms that if he returned to Malaysia, the applicant would be subject to the Federal Penal Code 1936 s377A which criminalises consensual same-sex sexual activity with a maximum penalty of 20 years imprisonment and whipping although prosecutions are rare. As a Muslim Malay, the applicant would also be subject to numerous state-level syariah-based laws prohibit same-sex relations in states across Malaysia. While the risk of prosecution may be low, the Tribunal is satisfied the risk is not remote or far-fetched. The Tribunal finds that there is a real chance of serious harm to the applicant from the authorities if he were to return to Malaysia and live as a gay man in the reasonably foreseeable future.
If the applicant is prosecuted and convicted for same-sex sexual activity under the Malaysian law, he could be sentenced to imprisonment for up to 20 years, amounting to deprivation of liberty under s5J(5)(a), and whipping, amounting to serious physical ill-treatment under s 5J(5)(c) of the Act. The Tribunal finds this constitutes serious harm for the purposes of s5J(4)(b) of the Act.
The Tribunal finds that that the applicant’s membership of a particular social group as a gay man in Malaysia is the essential and significant reason for the harm faced by the applicant for the purposes of s5J(4)(a) of the Act. As the laws operate at both federal and state levels, the Tribunal finds that the real chance of persecution relates to all areas of Malaysia for the purposes of s5J(1)(c) of the Act. In their application to the applicant as a gay man in Malaysia, the laws are systematic and discriminatory for the purposes of s5J(4)(c).
The Tribunal notes that the applicant avoided risk of harm in the past in Malaysia but hiding his sexual orientation and the fact he was in a same-sex relationship. It is possible the applicant could avoid harm in the future, should he return to Malaysia, by living in the same way. However, the Tribunal finds that to do so would require the applicant to conceal his true sexual orientation, which is not permitted under s5J(3)(c)(vi) of the Act. The Tribunal therefore finds that the applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of harm.

100.As the laws are imposed by the Malaysian government, the Tribunal finds there are no effective protection measures available to the applicant in Malaysia.
101.The Tribunal finds the applicant has a well-founded fear of persecution from the Malaysian authorities for the reason of being a gay man if he were to return to Malaysia.

Fear of harm on the basis of political opinion

102.In his submissions dated 17 December 2024, the applicant expressed a view that the Malaysian government should stop supporting gay conversion practices and instead educate public official, police, judges and government staff on gender diversity and human rights. The applicant advocated for the repeal of laws that discriminate on the basis of sexual orientation and gender identity. The Tribunal asked the applicant to clarify whether he had expressed his views publicly in Australia or Malaysia. In his response dated 21 February 2025, the applicant confirmed he had not as he was aware that LGBT issues were sensitive in Malaysia and that supporting LGBT rights is an offence under national law.
103.The Tribunal finds that the applicant has not previously expressed his anti-conversion therapy views publicly here or in Malaysia. The Tribunal finds that the applicant has not advocated for LGBTQI rights here or in Malaysia. The Tribunal also finds that the applicant is unlikely to advocate for LGBTQI rights or express his anti-conversion therapy views if he were to return to Malaysia. It follows that the Tribunal finds that there is no real chance the applicant would face serious harm on the basis of these views should he return to Malaysia now or in the reasonably foreseeable future.
104.Given that the Tribunal has found that there is a real chance that the applicant would face serious harm on the basis of his sexual orientation should he return to Malaysia, the Tribunal finds that the applicant is a refugee and is owed protection under s36(2)(a).

Exclusionary provisions

105.Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act, which are extracted in the attachment to this decision.
106.There being no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Australia, the Tribunal finds that the exclusionary provisions in s36(3) do not apply to the applicant.

Conclusion

107.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).
108.It is therefore not necessary for the Tribunal to consider whether the applicant meets the alternative criteria for complementary protections under s 36(2)(aa) of the Act.
109.The Tribunal finds that s 36(3) does not apply to the applicant.

DECISION

110.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(s) of hearing: 3 December 2024

Representative for the Applicant: self

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

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

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.
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.
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.
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.
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.
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

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.

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.

…

Protection visas – criteria provided for by this Act

…

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.
…
Section 36 (continued)

Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

sponsored-homophobia-after-lgbt-crackdown/