2105561 (Refugee) - [2025] ARTA 1348

2105561 (Refugee) [2025] ARTA 1348 (11 April 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Jia Li
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2105561
Tribunal:General Member S Dhillon
Date:11 April 2025

Place:Sydney
Decision:The Tribunal remits the matter for reconsideration with the order that the applicant meets s 36(2)(a) of the Migration Act.

Statement made on 11 April 2025 at 2:00pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from criminal gangs – application completed by another person, applicant not aware of contents and new claim made pre-hearing – particular social group – homosexual woman – androgynous appearance and masculine clothing – relationships in home country – harassment, discrimination and threats – marriage in Australia but separated and wife in third country – honest and credible evidence, documentation and supporting statements – disclosure to friends, but not to mother or publicly – delay in applying and late claims – unwilling to disclose sexuality to previous agent – reasonable explanation and no unfavourable inference drawn – country information – criminal and syariah laws and social taboos and intolerance – no effective protection and risk in all areas of country – modification of behaviour not reasonable – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (2), (3), (5), 5L, 5LA, 36(2)(a), 65, 367A
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 on 7 May 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Malaysia, applied for the visa on 21 April 2020. The delegate refused to grant the visa on the basis that that they were not satisfied the applicant would be harmed on return to Malaysia.
CLAIMS AND EVIDENCE
Evidence before the Department
The applicant is a [Age]-year-old citizen of Malaysia. She was born in Pulai Pinang, Malaysia. Her preferred language is Mandarin.
In summary, in her Protection visa application, the applicant stated that she feared harm from criminal gangs in Malaysia.
The applicant was not invited to an interview before the delegate and did not provide any further information in support of her claims. A decision was made based on the information in the application form.
The delegate of the Minister refused the Protection visa application. The delegate was not satisfied that the applicant is a refugee as defined by s 5H(1) and a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act, as they were not satisfied she faced a well-founded fear of persecution. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk she would suffer significant harm.
The review application
The review application was lodged on 29 April 2021. On 20 February 2025, the applicant returned a pre-hearing information form stating that she was not aware of the contents of her original protection visa application and that her claims related to her sexuality. On 14 March 2025 the applicant returned a ‘Response to hearing notice’ form indicating she would attend the Tribunal hearing.
Prior to the hearing, the applicant and her representative provided a number of statements and submissions in support of her application, including: numerous photos of the applicant at various stages as a child, teenager and young adult showing her dressed like a ‘tomboy’ and androgynously, with short hair in all photographs, photos of waist binders the applicant uses on her chest, photos of the applicant attending the Mardi Gras parade in Sydney with friends, an explanation regarding the applicant’s first same-sex relationship in Malaysia along with photographs of the applicant and her then girlfriend together, a collection of photos providing a chronology of the applicant’s second same-sex relationship in Malaysia, a collection of photos along with explanations detailing the inception and development of the applicant’s third same-sex relationship in Australia, a marriage certificate and photos taken at the wedding ceremony of the applicant and her wife, evidence of numerous money transfers from the applicant to her wife after she returned to [Country] in mid-2022, photos of gifts and airline tickets which the applicant purchased for her wife and evidence of numerous trips taken together, and personal statements provided by the applicant, her ex-girlfriend ‘Ms O’, her wife ‘Ms H’. The applicant also provided two sworn statutory declarations from long term friends.
The applicant provided country information about LGBTIQI+ people in Malaysia, including recent reports from Human Rights Watch on the problems faced by LGBTIQI+ people in Malaysia, a Stonewall Global Workplace Briefing on Malaysia from 2018, news articles about the situation for gay travellers in Malaysia and news articles about the situation for LGBTQI+ people living in Malaysia, and articles about the situation for LGBTIQI+ people in Malaysia.
The applicant’s statement submitted prior the hearing, in summary, made the following claims:
·Her original protection visa application was made by someone and she did not understand much at the time, or that her sexuality could be claimed as a reason for refugee status.
·She married her wife, Ms H in May 2022, although they are currently separated.
·Her claim for protection is due to the harm she would experience in Malaysia due to her sexuality, specifically, her being a lesbian.
·She has been in two same-sex relationships in Malaysia. The first began when she was 14 or 15 at the time. The relationship came to an end after the applicant was spoken to by a teacher, who warned her that liking girls was wrong and, if she continued, the school would report her to her family and the police. The applicant then suggested to her girlfriend that they break up and they eventually they lost contact.
·The applicant refrained from entering another relationship for the next seven years due to the fear that it might not work out, or that she would be reported to the police. However, in 2012, she met a co-worker, Ms O, and they became closer and eventually started a relationship in 2013 after the applicant confessed her attraction. The applicant was in a same -sex relationship with Ms O until 2016. During the time she was in a relationship with Ms O, the applicant was asked if she was a lesbian by co-workers and subject to inappropriate jokes. Eventually her boss had a talk with her and made it clear that having a same-sex relationship was not allowed and if it continued, she would need to find a new job. The applicant left her employment after this and her and Ms O made sure that they did not show any gestures of affection in public.
·Ms O broke up with the applicant in 2016 after her brother found out about the relationship. Upon discovering their relationship Ms O’s brother called the applicant a ‘lady boy’ and also threatened the applicant that he had connections to gangs and would send people to come after her and make sure she couldn’t stay in Malaysia. The applicant did not report him to the police as she feared how she would be treated by the police as a lesbian. Approximately two months later, the applicant left Malaysia.
·The applicant met her wife Ms H in June 2016 and they commenced a relationship in January 2019 after being friends for some years. They commenced living together in April 2019 and registered their marriage in May 2022. Neither of them told their parents about their marriage due to their conservative views on sexuality. In July 2022, Ms H returned to her home country to visit an ill family member and has been unable to return to Australia since that time. Initially the applicant continued to financially support her by sending her money. However, due to the strains of their long-distance relationship, they have been separated since July 2023.
·She had to hide her sexuality in Malaysia due to fear of further discrimination and harassment or being reported to the authorities.
·Her mother is a very traditional woman, and after previously meeting a friend of hers that was queer, told the applicant to stay away from her. She also told the applicant that liking girls is wrong, being a lesbian is disgusting, and she would kick her out of the house if she is a lesbian. The applicant detailed numerous excuses she made to family members who questioned her androgynous appearance, for example, pretending she wore boys’ clothes due to her weight.
·She was humiliated by teachers throughout her schooling for her short hair, androgynous clothing, and ‘boyish’ appearance, including being made to stand in front of school assemblies, shamed for being too boyish, and used as an example for other girls in the school.
·Once when she was waiting with a colleague at night after they finished work, her colleague’s boyfriend arrived, saw the applicant waiting with his girlfriend and assumed she was romantically interested in her. He tried to attack the applicant by hitting her. The applicant feared for ger safety and called her friends, but her co-worker intervened and prevented her boyfriend from hitting the applicant.
·The applicant always hid her sexuality in Malaysia because she knew she would not be accepted by the country, community, or her family. She was forced to keep her relationships out of the public and conceal the truth from her mother. She believes that revealing her sexuality in public in Malaysia would have severe consequences.
The applicant appeared before the Tribunal on 9 April 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant’s representative attended the hearing. Towards the end of the hearing, the applicant’s representative made submissions in relation to the serious harm the applicant would face in Malaysia based on her sexuality and membership of a particular social group. She also addressed the applicant’s delay in raising her claim to fear harm due to her sexuality.
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.
CONSIDERATION OF CLAIMS, REASONS AND FINDINGS
Receiving country
The applicant claims to be a citizen of Malaysia and no other country. She presented a passport at hearing which has been issued by the authorities of Malaysia which records her nationality as Malaysian. I accept the applicant is a citizen of Malaysia and Malaysia is the receiving country for the purpose of assessing her claims.
Evidence at hearing
During the hearing, I discussed with the applicant her family, employment, sexuality, migration history, past relationships, the problems she experienced in Malaysia and why she fears returning there. I found the applicant to be an honest and credible witness. The applicant was able to speak to her background and experiences in a straightforward manner, provide detailed information in relation to claimed events, and appeared to be recounting events from the past which she genuinely experienced and remains emotionally affected by.
The applicant gave evidence that she is an only child, raised by a single mother, and her mother still lives in Penang. She speaks with her mother every month or so. She does not have any other siblings and is not close to her family members. Her family does not know she is a lesbian and this is something she hides from them. The applicant stated at numerous points throughout the hearing that her mother is very traditional and would disown her if she found out about her sexuality and that she is attracted to women.
In terms of her sexuality, the applicant stated that she identifies as a lesbian, that she is only attracted to women, she cannot change this, and she cannot be with men. She first realised she was attracted to girls when she was in primary school. She did not disclose this to anyone as she knew from a very young age that it was illegal and she didn’t dare talk to anyone about it.
When the applicant was around 14 or 15, she became attracted to a classmate. She confided this to a friend (who also gave oral evidence at the Tribunal hearing). Because she was her good friend and saw her always with short hair and wearing boys’ clothes, she was supportive and told her that if she really liked girls she should tell her classmate that she was attracted to her. The applicant did this, and they were in a relationship for a period but kept it a secret as it was illegal.
The applicant did not share with others in the Malaysian community that she is a lesbian, only close friends. The applicant explained that she actually tried to conceal her sexuality from the community and her family, as her mother always wanted her to wear dresses and marry a man. The applicant explained she started binding her chest with waist binders from a young age. Her mother became suspicious and asked what the waist binders were for. After this the applicant bought bras which she pretended to wash so her mother would not be suspicious. The applicant recounted an instance where she visited a friend who is also a lesbian. Her mother saw this friend and warned the applicant to stay away from her, told her it was disgusting for girls to like girls, and that she could kick her out of her home and disown her if she was a lesbian. The applicant said that she cannot change the way she dresses or stop wearing binders around her chest but she did think of excuses to give people. For example, she told people she wore masculine clothing because she was overweight, and so she could not wear women’s clothing.
Since coming to Australia, the applicant states she feels free and a lot more courageous to exhibit affection in public, whereas in Malaysia she always had to hide any public affection with women. She has been to the Mardi Gras parade once in 2019 and observed that people in Australia are tolerant of different sexualities. When asked if she had any other involvement in the lesbian or LGBTQI+ community in Australia, the applicant said she had thought about it but was worried there would be journalists at events taking photographs, and if she had to return to Malaysia this could be harmful for her. She also said she had tried to engage with females on social media platforms but stopped because she was worried about getting scammed.
The applicant recounted incidents of harassment and discrimination she experienced in Malaysia. This included an incident when she was in school, where the teachers targeted her because she had a boy’s haircut. The teachers at her school cut her hair even shorter and made her stand at the front of the assembly and made an example out of her for the other girls saying that this is what happens to girls who act like boys. She was also forced to wear a shower cap for one month. The applicant said this incident was humiliating and damaging for her self-esteem, and she did not want to return to school after this.
The applicant also recounted an incident she was waiting with a co-worker for her boyfriend to come and pick her up after work. When he arrived and saw that applicant was waiting with his girlfriend and wearing male attire he became verbally abusive, yelled at her that she was a lesbian and wanted to beat her. The applicant stated that this incident was extremely traumatic, and she still has nightmares about it.
When asked if there was a specific incident that led to her leaving Malaysia, the applicant gave evidence that while she was in her second same-sex relationship with Ms O in Malaysia, her brother found out and threatened to beat her, and she feared harm from him. I note this was also corroborated by Ms O herself who provided a sworn statement to the Tribunal. Ms O stated that upon discovering her relationship with the applicant, her brother warned Ms O to stay away from her and that he had people that would cause trouble for the applicant.
I took oral evidence from the applicant’s witnesses, both of whom she knew in Malaysia. Both witnesses stated they knew the applicant identified as a lesbian and has since the time they knew her in Malaysia. They broadly corroborated the applicant’s evidence in relation to the instances of harassment and discrimination the applicant experienced as the applicant had confided in them after these events had occurred. One witness also gave evidence that she had met the applicant’s mother in Malaysia, and afterward the applicant told her that the applicant’s mother has said the applicant should not go to this friend’s house because she was a lesbian and that she made derogatory comments about lesbians. This witness also gave evidence that she was aware the applicant’s relationship with Ms O came to an end when her brother found out, and that he gathered his friends and threatened to beat the applicant.

When asked what she thought would happen if she had to return to Malaysia the applicant explained that she cannot change her sexuality, that she is a lesbian and that she likes females. Her mother will not accept this and she cannot force herself to like men. She has lost jobs in the past due to her relationships so there are no career opportunities. She will continue to be discriminated against and she is afraid that she will be beaten and threatened like before, and she will not be able to tell Malaysian police as they won’t help her due to her sexuality. She has also heard from others that the police frequent gay and lesbian pubs to arrest people, and sometimes when the police arrest individuals they also send them to conversion therapy to try and convert them back to the ‘right path’. In Malaysia, people treat homosexuality like a disease that needs to be treated and people who come out of conversation therapy often want to commit suicide because it is like mental torture. The applicant also described an instance where a friend who was taking hormone injections was verbally abused when she tried to use a female toilet and beaten when she used the male toilet. The applicant gave evidence that she herself had similar experiences. She noticed that other girls looked at her differently when she used public toilets in Malaysia and she had been told she was in the wrong toilet and shouldn’t come there. She is even more fearful after hearing what happened to her friend. She would have to try and hide her sexuality as she is scared she will be reported, arrested and/or beaten.
I noted that the applicant did not raise any claims relating to her sexuality before the delegate. I raised this with the applicant during the hearing, and explained the operation of s 367A of the Migration Act and that it required me to draw an unfavourable inference in relation to the credibility of these claims unless I was satisfied there was a reasonable explanation for her not raising them before the delegate. The applicant gave evidence that when she first came to Australia she came because she was afraid after the events that occurred prior to her leaving with her ex-girlfriend’s brother. She explained that she did not have much money when she arrived due to her difficulties with retaining employment after being told to leave jobs because she was a lesbian. She approached an agent after her visitor visa expired, and they told her to study something, however, the applicant did not do this as she was not in Australia to study but because she was afraid. Some years later in 2019, her wife looked online and suggested a migration agent she found. This agent asked the applicant for her personal information and told her they would apply for a visa for her. The agent did not ask her for details in relation to her fears and she did not disclose she was afraid to return to Malaysia due to her sexuality, and she was not invited to an interview. It was only after the protection visa was refused that the applicant started to google and do her own research and realised she could claim refugee status on the basis of her sexuality. After this she approached her current representatives who assisted her to prepare her claims before the Tribunal. It was only after her current representative obtained her files from the Department that the applicant realised that the information provided by the previous agent as incorrect. Having had the benefit of the applicant’s oral and written evidence, I accept that she did not raise these claims earlier because she was mis-advised by her previous migration agent and did not realise she could raise her sexuality as a reason for fearing serious harm in Malaysia. I am satisfied the applicant has provided a reasonable explanation which explains why her claims were not raised before the Department and l have not drawn any unfavourable inferences in relation to the credibility of her claims.
Overall, the evidence given by the applicant during the hearing is consistent with the claims she made in a detailed written statement submitted prior to the Tribunal hearing.
Findings
I accept the applicant’s evidence in relation to her sexuality, and I find the applicant is a lesbian, has been attracted to females since she was in primary school, and has regarded herself as a lesbian from a young age. I accept the applicant was conscious from a young age that homosexuality is illegal in Malaysia and tried to conceal her sexuality since high school by making excuses for her appearances and behaviours to family members and others in the community and not disclosing her sexuality to anyone other than close and trusted friends because she was afraid of the consequences. I accept that despite this, she experienced harassment and discrimination growing up in Malaysia due to her ‘boyish’ appearance from teachers, and that she was threatened with serious harm on at least one occasion by a member of the community due to her ‘masculine’ attire. I accept that the applicant faced discrimination in the workplace in the form of it being implied to her that she could not continue to work there is she was a lesbian. I find the applicant’s appearance, which she described herself as ‘androgynous’ and her dress style which she described as ‘masculine’ is a part of her identity as a lesbian.
I accept the applicant’s evidence in relation to the inception and development of her past relationships, that she has been in three same-sex relationships of significance, and that aside from her most recent relationship in Australia, the applicant conducted these relationships largely in private to avoid suspicion from others in the community and due to a genuine fear that she would be reported to the police. I accept that when Ms O’s brother found out about their relationship he threatened the applicant with physical harm from himself and people connected to him. I accept that the applicant’s mother has made a number of negative comments about lesbians, has threatened to disown her if she is a lesbian, and would not provide the applicant with any form of support if she disclosed that she is in fact a lesbian.
Relevant country information
The DFAT Country Information Report on Malaysia 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.’[1] 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.[2] JAKIM and other state level religious authorities have occasionally conducted raids on LGBTQIA+ events, and state officials have conducted raids on private premises.[3] 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.[4] 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.[5] LGBTQIA+ issues are considered taboo in Malaysia, particularly among Muslims. Online abuse against people who raise LGBTQIA+ issues online is common.[6]
[1] Department of Foreign Affairs and Trade Country Information Report – 24 June 2024, 3.136.
[2] Ibid, 3.127.
[3] Ibid, 3.130.
[4] Ibid, 3.131.
[5] Ibid, 3.132.
[6] Ibid, 3.133.
In relation to lesbians specifically, the DFAT Report states lesbians and queer women are much less visible in Malaysia than other members of the LGBTQIA+ community.[7] Forced heterosexual marriages for lesbians are common, and lesbians in such marriages find it very difficult to obtain a divorce without outing themselves. Treatment of lesbians is worse for Muslim women as syariah criminalises sexual activity between women. While syariah offences only apply to Muslim women, they also have a large impact on non-Muslim lesbians by harming their relationship with authorities[8]
[7] Ibid, 3.138.
[8] Ibid.
The current United States Department of State 2022 Country Report on Human Rights Practices: Malaysia[9] similarly reports that Malaysian law does not prohibit discrimination based on sexual orientation, gender identity or expression, or sex characteristics and does 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.[10] The report further states that ‘observers reported violence against LGBTQI+ persons was common, and that police at times perpetrated and condoned such violence, including against individuals in custody.[11]
[9] US Department of State, 2022 Country Reports on Human Rights Practices: Malaysia
[10] US Department of State, 2022 Country Reports on Human Rights Practices: Malaysia, 32.
[11] Ibid.
Does the applicant satisfy the refugee criterion for protection?
I have considered whether the harm the applicant fears is for one of the five reasons set out in s 5J(1)(a) and is by reason of her membership of a particular social group. I find the applicant is a membership of a particular social group as defined under s 5L, being a ‘lesbian’ This particular social group is defined by gender and sexual orientation. The characteristic of sexual preference and identity is shared by each member of the group and those characteristics being immutable characteristics. I find these characteristics are fundamental to the applicant’s identity or conscience. I find that the applicant should not be forced to renounce these characteristic and that the characteristics distinguish her from society. I find that the characteristic is not merely a shared fear of persecution. I am therefore satisfied the harm feared by the applicant is due to a refugee ground under
s 5J(1)(a).
I have considered whether the applicant would face a real chance of serious harm if she returned to Malaysia in the reasonably foreseeable future due to her status as a lesbian. In this respect, I bear in mind relevant country information as set out above, as well as the country information provided by the applicant. The country information referred to above indicates that Malaysia is a conservative Islamic nation and that adult same-sex acts are illegal. Although this law may not be widely enforced, I accept that its existence can be used as a threat. Country information indicates that the overall situation for LGBTQI+ people in Malaysia is becoming less tolerant and there is a strong social taboo against LGBTQI+ issues. DFAT assesses that, in general, LGBTQI+ individuals face a moderate risk of official and societal discrimination and many members of the LGBTQI+ community continue to hide their identity to avoid harassment, familial ostracism, and/or violence.
I note that this information is consistent with the applicant’s own past experiences in Malaysia. I accept based on the county information and the applicant’s own past history of discrimination and harassment perpetuated by teachers, co-workers and members of the community, her ostracization within her family, and the threats of harm she has experienced in Malaysia, would constitute serious harm, as set out in s 5J(5). Having considered the applicant’s particular profile, including her androgynous appearance and her lack of family support, I find that if the applicant returned to Malaysia in the foreseeable future there is a real chance she would experience similar kinds of discrimination, harassment, threats of harm, and possibly physical harassment. I find that this would reach the level of serious harm, being threats to the applicant’s life or liberty and potentially significant physical harassment or significant physical ill-treatment. I find that the real chance of persecution relates to all areas of Malaysia.
I am satisfied that the persecution will be directed at the applicant for the essential and significant reason of her membership of a particular social group, it involves serious harm to her and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or ill-treatment of the applicant.
I have considered whether the applicant could modify her behaviour to avoid persecution, as required by s 5J(3), by concealing her sexual orientation. I accept that the applicant has modified her behaviour in the past to attempt to conceal her status as a lesbian and was discreet in her relationships in Malaysia because she feared discrimination and harm. She has given evidence that she would have to remain discreet about her sexuality if she had to return to Malaysia due to her fear of being ostracised, reported to the police, arrested or harmed. I am satisfied that the applicant cannot take reasonable steps to modify her behaviour in future in order to avoid a real chance of persecution in Malaysia as this would require her to conceal innate or immutable characteristics, being her sexual orientation and identity.
Considering the country information set out above, I am also not satisfied there are effective protection measures available to the applicant in Malaysia as set out in ss 5J(2) and 5LA, such as seeking assistance or protection from the Malaysian police. The applicant’s own evidence was that she did not call the police when she was threatened previously, because she feared they would discriminate against her or arrest her for being a lesbian. I find that the persecution the applicant fears comes from government authorities themselves and the applicant cannot seek effective protection against this. I also note that the note that information from the UK Home Office ‘Country policy and information note’ on Malaysia states it would be ‘unreasonable to expect a person identifying as LGBTI to seek protection from the Malaysian authorities’ and that in general, the Malaysian state appears able but unwilling to offer effective protection and so the person will not be able to avail themselves of the protection of the authorities.[12] It follows from this that I find that effective protection measures are not available to the applicant if she were to return to Malaysia.
[12] United Kingdom Home Office, Country policy and information note: sexual orientation and gender identity or expression, Malaysia, July 2024 at 2.5.4.
I am also satisfied the applicant does not have the right to enter and reside in a third country as set out in s 36(3) of the Act.
Concluding findings
For the reasons given above, I find that the applicant meets the definition set out under
s 5H(1), and that she 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.
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.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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