2105644 (Refugee) - [2025] ARTA 741

2105644 (REFUGEE) [2025] ARTA 741 (19 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2105644
Tribunal:Jennifer Lock
Date:19 February 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 19 February 2025 at 2:01pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – written claim of pressure to marry by parents and being physically hurt for disagreeing – new claim as homosexual woman made at hearing – application prepared by acquaintance of housemate, and applicant did not disclose sexuality – registered relationship with citizen of another country, but limited disclosure to families, friends and colleagues – country information – federal and state-based syariah laws and harassment and violence in community – altering or concealing orientation not reasonable – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (6), 36(2)(a), (aa), (2A), 65, 367A
Migration Regulations 1994 (Cth), Schedule 2
CASES
AKA24 v MIMA [2024] FedCFamC2G 1434
S395/2002 v MIMA [2003] HCA 71
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
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 April 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant who claims to be a national of Malaysia, applied for the visa on 3 June 2020. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant would face a risk of harm from her parents forcing her into an arranged marriage in Malaysia. The delegate was satisfied there were effective protection measures contained in Malaysian law and from Malaysian authorities that are available to the applicant.
3. The applicant appeared before the Tribunal on 11 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
4. The applicant was born in [Year] in Kota Kinabalu, in Sabah, Malaysia. She is of Malay ethnicity and of the Muslim faith. In her protection visa application lodged on 3 June 2020 (the protection visa application), the applicant recorded that she attended school in Kota Kinabalu and then attended university in Kuala Lumpur to study [subject]. She graduated with a bachelor degree in 2012. She returned to Kota Kinabalu and obtained employment as a branch manager of a [workplace].
5. The applicant arrived in Australia [in] March 2020 as the holder of an Electronic Travel Authority (Class UD subclass 601) visa and applied for a protection visa on 3 June 2020.
CLAIMS AND EVIDENCE
Evidence before the Department
6. The applicant lodged a protection visa application with the Department of Home Affairs (the Department) on 3 June 2020. In that application, the applicant claimed she:
·was tricked into an arranged marriage by her parents and felt she had to obey them
·was physically hurt by her parents on one occasion for voicing disagreement with the arrangement to marry a man of their choice
·fears she will be forced to marry a man of her parents’ choice if she returns to Malaysia
·fears physical harm and emotional pressure if she returns to Malaysia
·has parents with connections in Malaysia of which she was previously unaware

7. The applicant also provided a copy of her Malaysian passport issued [in] 2016.
8. The applicant was not offered the opportunity to attend an interview with the Department.

A delegate of the Department made a decision dated 30 April 2021 refusing to grant the applicant a protection visa as the delegate was not satisfied the applicant would face a risk of harm from her parents forcing her into an arranged marriage in Malaysia. The delegate was satisfied there were effective protection measures contained in Malaysian law and from Malaysian authorities that were available to the applicant.
Evidence before the Tribunal
On 30 April 2021 the applicant applied to the Tribunal for a review of the delegate’s decision.
On 1 July 2024 the Tribunal provided a pre-hearing information form to the applicant inviting her to provide any further information about her claims for protection. In a response provided on 7 July 2024, the applicant raised the following claims, that she was afraid to return to Malaysia because:
·of the marriage arranged by her parents
·she is a lesbian and felt that Malaysia is not a safe place for her, especially as she was now in a same sex-relationship and had been for 2.5 years.
In support of her claims in the response dated 7 July 2024, the applicant also provided:
·photographs of the applicant and [Ms A]
·a letter from [Ms A] dated 5 July 2024, confirming she has been in a relationship with the applicant for 2 years and providing a history of their relationship
·copies of a bank statement for a joint bank account in the names of the applicant and [Ms A] sent to the applicant’s address in [Suburb 1], Victoria
·a copy of a gas account in the applicant’s name at the address in [Suburb 1], Victoria
·a copy of a bank statement in [Ms A]’s name at the applicant’s address in [Suburb 1], Victoria
In a further submission to the Tribunal on 3 February 2025, the applicant provided a statement stating:
·she left Malaysia because of the wedding arrangements being made by her parents
·her family practice strict Muslim law and the applicant is Muslim and her ethnicity is [Ethnicity]
·the Federal Penal Code 1936 in Malaysia prohibits same sex sexual activity with punishment of up to 20 years prison and caning
·she was more attracted to girls at school, but did not come out in Malaysia as it was not accepted and she feared the discrimination and hate she would face by society especially due to her Muslim appearance
·she quit her job in 2019 due to the stress of the arranged marriage and her plans to leave the country
·she arrived in Australia in March 2020 and applied for protection as she knew Australia protects people from discrimination on the basis of their sexual orientation
·she fears discrimination, harassment, violence and significant harm physically and mentally if she has to return to Malaysia
·now she has a partner, she wants to live in safety and without discrimination and have access to health and other services regardless of sexual orientation.
With her submissions on 3 February 2025, the applicant provided copies of the following documents:
·An article from FMT Reuters ‘100 attend public caning of couple in Terengganu lesbian sex case’ (2018) [1] regarding the public caning of two women who were found guilty by the Terengganu Shariah High Court of attempting to have same-sex relations.
·An article from Thomas Reuters Foundation ‘Rising fear in Malaysia’s LGBT community’ (2018)[2] regarding the alleged assault by 8 men of a transgender woman that campaigners claim highlighted the growing hostility towards gay and transgender people in Malaysia
·An article from Reuters ‘LGBTQ fears grow in Malaysia as Islamists shatter reform hopes’ (2023)[3] regarding a police raid on a drag queen’s performance at a party, and rights groups reporting increasing scrutiny and discrimination of the LGBTQ community
·A Relationship Certificate issued by the Registry of Births, Deaths and Marriages in Victoria dated [October] 2024 that registered a domestic relationship between the applicant and [Ms A]
·Photographs of the applicant with [Ms A] and [Ms A]’s family on Christmas Day 2024.
[1] FMT Reporters (3 September 2018) ‘100 attend public caning of couple in Terengganu lesbian sex case’ [1]
[2] Thomas Reuters Foundation (24 August 2018) ‘Rising fear in Malaysia’s LGBT community’
[3] Latiff R and Ananthalakshmi A (21 August 2023) ‘LGBTQ fears grow in Malaysia as Islamists shatter reform hopes’, Reuters
At the hearing held on 11 February 2025, the applicant gave evidence summarised as follows:
·She is claiming protection based on her sexual orientation and her fear of a marriage arranged by her parents if she were to return to Malaysia.
·She corrected the claims set out in the protection visa application and confirmed that while her parents were arranging a marriage for her, they did not harm her physically when she objected. She explained that when she first arrived in Australia, one of her housemates put her in contact with a man who assisted her to complete the application and she was very stressed at the time. She paid the man $AUD350 to assist her. As the man looked religious she did not disclose to him that she was a lesbian as she was afraid of being judged by him.
·She did not raise her claims for protection based on her sexual orientation prior to the delegate’s decision as she did not know what to do. When she received the delegate’s decision, she didn’t know what she should do. She sought help from the man who assisted her previously. He helped with lodging the application for review but did not help her any further. She thought that after that process, it would all be good. She did not know about the Tribunal process.
·The situation is very hard in Malaysia if you are a member of the LGBT[4] community as they face discrimination and same sex relationships are illegal and punishable by gaol or caning and that scared her.
[4] Lesbian Gay Bisexual Transgender
·She was not open about her sexual orientation in Malaysia as she was scared of people’s reactions. She knew she was a lesbian in high school and university but didn’t tell anyone about it. She was afraid about their perception and the stigma that Malaysian society has towards the LGBT community.
·She didn’t tell her family about her sexual orientation, but suspects her mother knew she was not interested in boys because the applicant was more interested in sports played by guys at school. The applicant believes it was because of this and because the applicant was approaching [Age] years of age that her parents were forcing her towards marriage.
·In 2019 the applicant’s parents told her the son of their friends wanted to propose to her. The applicant refused, but after a few weeks her parents and their friends started to arrange the marriage. The applicant did not know the man or his name and had never met him.
·The applicant was so stressed as she felt she could not be in a relationship with someone she didn’t like and she was not straight. She was unable to go out at times and was unable to go to work. She shaved her head in an attempt to postpone the wedding. Eventually she had to quit her job in November 2019 due to the stress.
·The applicant made plans to travel to Australia, telling her parents she was going on a holiday, which they accepted. Once in Australia, the applicant told her parents she could not return to Malaysia due to the outbreak of the COVID-19 pandemic. They now accept that she wishes to remain in Australia. She has not told them she is a lesbian[5]. She has told her brother and sister, who still live in Sabah, Malaysia and who are generally supportive and want the applicant to be happy. She believes her brother told her mother and that she did not react as the applicant believes she already knew. She believes her mother may be disappointed.
[5] As this is the term used by the applicant, it will be the term adopted by the Tribunal
·She had not been in any romantic relationships in Malaysia – either same-sex or straight.
·The applicant’s brother reported to her that her uncles and aunts in Malaysia say that she has been a bad daughter by leaving Malaysia and this has had a negative impact on her.
·In Australia, the applicant formed a same-sex relationship with her now partner. She has not had any other romantic relationships in Australia. Only their close friends know of their relationship. Many of the applicant’s workmates are Muslim and she is not open about her relationship with them.
·The applicant met [Ms A] at the end of July 2021 through work. The applicant would give [Ms A] a lift to and from work. They started talking and after a few months formed a relationship. After a year they started living together. They moved in together at the end of January 2023.
·It is hard for the applicant to be open about the relationship as she is a Muslim. While the applicant recognises it is against her religion, she feels you cannot choose who you love. [Ms A] is Christian and is of the same opinion – that if you are in love with someone it is regardless of gender.
·[Ms A] is from [Country] and migrated to Australia with her family. [Ms A]’s sister knows about their relationship and is OK with it. They told her in 2022. They haven’t told [Ms A]’s parents yet, but they are accepting of the applicant and kind to her and invite her to family gatherings and celebrations. The applicant thinks they know about her relationship with their daughter.
·She and [Ms A] applied for a Relationship Certificate [in] July 2024 as [Ms A] wanted to put the applicant on her Medicare card. The applicant does not have access to Medicare. [Ms A] is an Australian citizen and wanted to include the applicant on her card. [Ms A] was told they would need to apply for the certificate. They needed to show they had been living together for one year. It meant that they are together and was important to have a declaration that they can live this life together.
·The applicant and [Ms A] have considered the option of applying for a partner visa, but the applicant stated she is unable to as her Malaysian passport has expired and she would not be able to have her passport renewed by the Malaysian authorities as she is on a bridging visa.
·The applicant could not seek protection from Malaysian authorities as there was no anti-discrimination law protecting lesbians in Malaysia. She would face discrimination in employment and accessing health and other services. Her parents would not be able to support her due to their age and there would be no government support available to her if she was unable to find a job.
·There was no part of Malaysia in which she would be safe and all states apply the same law. It might even be worse if she were to move to another state. In Sabah the majority of the population is non-Muslim, the western parts of Malaysia are more conservative. She would not be safe in Kuala Lumpur as discrimination will still be the same as the stigma is the same. It makes no difference in a big city or small city, the law is the same.
At the hearing held on 11 February 2025, the [Ms A] gave evidence summarised as follows:
·She was born in [Country] in [Year] and is [Age] years old.
·She arrived in Australia with her parents in 2017 aged [Age] years.
·She studied a Diploma of [Subject] and after graduating obtained work in a [workplace] in [Suburb 2] where she met the applicant in 2021.
·Initially the applicant would give her a lift to and from work. They started talking and would often talk on the phone at night after work. They became closer and started a relationship. She had been in a relationship with one woman previously.
·She returned to [City in home country] for a visit and the applicant told her that she missed her. When she returned they decided to move in together.
·She has not yet told her parents of her relationship with the applicant but might come out to them soon. She has told her sister, who is OK with the relationship and is happy if they are happy. She and the applicant often look after her nephew who is aged 5 years.
·She became an Australian citizen in 2023.
·They applied to have their relationship registered as they needed to prove their relationship for Medicare.
Claims
The applicant’s claim for protection is based on her sexual orientation as a lesbian and her fear of harm in Malaysia based on her sexuality. She also fears she will be forced into an arranged marriage by her parents if she were to return to Malaysia.
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.
REASONS AND FINDINGS

The issue in this case is whether the applicant has a well-founded fear of persecution because of her being a lesbian woman of the Muslim faith if she were to return to Malaysia. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Nationality
The applicant claims to be a Malaysian national from Sabah and provided a copy of her passport as evidence of this. The Department found no evidence that the passport was a bogus document and accepted that the applicant is a Malaysian citizen. The Tribunal accepts the applicant is a Malaysian citizen and finds Malaysia is her receiving country.
Credibility of the claims and evidence
On all the evidence before it, the Tribunal finds that the applicant’s claim to be a lesbian is genuine. The Tribunal finds that she is currently in a genuine relationship with [Ms A]. The applicant and [Ms A] each gave evidence to the Tribunal of the history and nature of their relationship. Their evidence was largely consistent. The Relationship Certificate issued by the Registry of Births, Deaths and Marriages of Victoria registering their domestic relationship is also persuasive evidence of a genuine same-sex relationship. The bank statements and utility bill that were provided to the Tribunal support a finding that the applicant and [Ms A] have a joint bank account and reside at the same address.
The Tribunal notes that the applicant’s claim that she is a lesbian and evidence provided in support of this claim were not before the delegate before the primary decision was made. In assessing the credibility of the applicant’s claim and evidence, the Tribunal must draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied the applicant does not have a reasonable explanation as to why the claim was not raised or evidence was not presented before the primary decision was made.[6]
[6] Migration Act 1958 (Cth) s 367A (‘Migration Act’).
At the hearing, the applicant explained that when she made her initial protection visa application, she sought the assistance of a man recommended to her by her flatmate. She told the man about her fears relating to an arranged marriage but felt unable to tell him she was a lesbian as she perceived him to be a religious man and she was afraid of being judged by him. The Tribunal notes that this was at a time when the applicant had only been in Australia for a couple of months and reported that she had been very stressed up until leaving Malaysia due to the impending arranged marriage – to the point that she had quit her job and shaved her head. She had not previously disclosed her sexual orientation to anyone or engaged in same-sex relationships in Malaysia for fear of people’s reactions and the stigma attached to the LGBT community in Malaysia. The applicant gave evidence of not understanding the process of applying for a protection visa and that the application form was completed by the man who assisted her.
The Tribunal finds in those circumstances, it was reasonable that the applicant would be reluctant to disclose her sexuality to a man she had not previously met, whom she perceived to be religious. This is also in the context of having just arrived in Australia, having experienced a high degree of stress prior to arrival, having not disclosed her sexuality to anyone previously and not understanding the protection visa application process. The Tribunal is satisfied the applicant has a reasonable explanation for not having raised her claim that she is a lesbian and not providing evidence in support of this claim prior to the primary decision being made.
The Tribunal is also required to disregard any conduct engaged in by the applicant in Australia unless satisfied that the applicant engaged in the conduct otherwise than for the purpose of strengthening the applicant’s claim to be a refugee.[7] The applicant gave evidence that she did not engage in any same-sex relationships in Malaysia and her only same-sex relationship has been her current relationship with [Ms A]. The Tribunal considers that engaging in a same-sex relationship is an expression of a person’s sexual orientation but not the only aspect of it. The applicant gave evidence of being aware of her sexual orientation as a lesbian in high school. She felt unable to tell her family members or anyone about it as she was afraid of the stigma. She gave evidence of the distress she felt at the prospect of being forced into a marriage with a man as she was not straight. The Tribunal finds that the same-sex relationship that the applicant has engaged in with [Ms A] in Australia is a genuine relationship and an expression of the applicant’s sexual orientation as a lesbian. The Tribunal is satisfied that it is not conduct engaged in for the purpose of strengthening the applicant’s claim to be a refugee.
[7] Migration Act (n 6) s 5J(6)
The applicant attended the hearing at the Tribunal wearing a tudung, or headscarf worn by Muslim women in Malaysia. In all the photos the applicant provided to the Tribunal, she is wearing a tudung. The applicant identifies as a Muslim woman. The Tribunal accepts that the applicant is a Muslim woman and is readily identifiable as a Muslim woman by wearing the tudung.
Does the applicant have a well-founded fear of persecution?
There was no evidence before the Tribunal that the applicant had suffered serious harm in Malaysia because of her sexual orientation. This was due in large part to the fact that the applicant did not disclose to anyone in Malaysia that she was a lesbian and did not have any same-sex relationships in Malaysia. The applicant believed her mother suspected she was a lesbian and this was one of the reasons her parents arranged a marriage for her. The applicant gave evidence that she became very stressed by the arranged marriage being proposed by her parents. However, the applicant confirmed that she had not been physically abused by her parents when she refused to agree to the marriage. The applicant gave evidence that the distress she felt at the prospect of marrying a man led to her not leaving the house much, missing work and having to quit her job and shaving her head. While an arranged marriage, had it proceeded, could be regarded as a threat to the applicant’s liberty and amount to serious harm, the applicant avoided this outcome by leaving Malaysia. The Tribunal is not satisfied there is evidence of the applicant having suffered serious harm in Malaysia for the essential and significant reason of being a lesbian.
The applicant previously avoided harm in Malaysia by not disclosing her sexual orientation to anyone and not conducting a same-sex relationship. Since being in Australia she has felt able to disclose her sexual orientation to her siblings and a close friend and been able to form a same-sex relationship that she wishes to continue. If she were to return to Malaysia it would not be reasonable to expect her to end her relationship or conduct it covertly or live discreetly as a lesbian in Malaysia. Indeed, to expect the applicant to do so is contrary to provisions of the Act that state that requiring a person to alter or conceal their sexual orientation in order to avoid a real chance of persecution in their receiving country is not reasonable behaviour modification.[8]
[8] Migration Act (n 6) s 5J(3)(c)(vi)
The Tribunal has also had regard to the principles set out by the High Court in S395/2002 v Minister for Immigration and Multicultural Affairs[9] that:
a person claiming harm as a refugee because of a central part of their personal identity (such as their sexuality or political opinion) should not be denied protection because they are seen to have the “option” of hiding that part of their identity. Hence, it should not be assumed, for example, that a lesbian or gay male can avoid harm by acting “discreetly” – a finding which is in and of itself harmful to the individual.[10]
[9] [2003] HCA 71 (9 December 2003)
[10] As applied in AKA24 v MIMA [2024] FedCFamC2G 1434 at para 67.
The Tribunal is obliged to consider why the applicant did not disclose her sexual orientation in Malaysia.[11] The applicant’s evidence to the Tribunal was because she feared the reaction of people around her and the stigma attached to being LGBT in Malaysia. The Tribunal finds that the applicant previously avoided serious harm in Malaysia by hiding her sexual orientation due to a fear of harm.
[11] AKA24 v MIMA [2024] FedCFamC2G 1434 at para 82.
In considering whether there is a real chance the applicant will suffer serious harm in the reasonably foreseeable future if she were returned to Malaysia, the Tribunal had regard to relevant country information. The Department of Foreign Affairs and Trade (DFAT) reports[12] that as a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+[13] identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent. Across Malaysia there are 52 laws that criminalise different forms of LGBTQIA+ behaviour. Prosecutions have taken place under these laws, including under Section 377A/377B (Unnatural Offences) of the Penal Code, which includes penalties of whipping and up to 20 years in prison. Numerous state-level syariah-based laws prohibit same-sex relations and non-normative gender expression. In February 2021, a nine-judge panel of the Federal Court unanimously declared that a Selangor syariah law criminalising ‘unnatural sex’ was unconstitutional. This means that the federal law stands, but that State laws against same-sex sexual activity are invalid. In-country sources reported in 2022 that three states added new laws relating to LGBTQIA+ people based on syariah over the last five years.
[12] Department of Foreign Affairs and Trade DFAT Country Information Report Malaysia (24 June 2024) (‘DFAT report’)
[13] lesbian gay bisexual transgender queer intersex asexual and other sexually or gender diverse
The DFAT further reported that 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. 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.
Specifically in relation to lesbians, DFAT reported that lesbians and queer women are much less visible in Malaysia than other members of the LGBTQIA+ community. Accordingly, NGOs advocating for lesbians and queer women are less prominent and have less funding. Forced heterosexual marriages for lesbians are common, especially in Sabah. Lesbians in such marriages find it very difficult to obtain a divorce without outing themselves, especially if they are Muslim. In rural areas, families sometimes confine lesbians to the family home due to cultural stigma. Treatment of lesbians is worse for Muslim women as syariah criminalises sexual activity between women. In-country sources reported there were four arrests of Muslim women for syariah offences over two months alone in early 2022.
Having been satisfied that the applicant is a Muslim woman, the Tribunal finds that the applicant would be subject to syariah law if she were returned to Malaysia.
The Tribunal has had regard to the country information and the articles provided to the Tribunal by the applicant regarding the treatment of lesbians in Malaysia, and the Malaysian laws which criminalise and prohibit same-sex relations. The Tribunal finds there is a real chance of the applicant facing serious harm for expressing her sexual orientation as a lesbian and having a same-sex relationship in Malaysia, particularly as a Muslim woman.[14] There is a real chance the applicant could face criminal charges, detention and physical punishment under syariah law and violence and harassment in the community. The Tribunal finds this amounts to serious harm,[15] specifically significant physical harassment and significant physical ill-treatment under the Act.[16] The Tribunal finds the persecution involves systematic and discriminatory conduct.[17]
[14] Migration Act (n 6) s 5J(1)(b)
[15] Migration Act (n 6) s 5J(4)(b)
[16] Migration Act (n 6) sub-ss 5J(5)(b) and (c)
[17] Migration Act (n 6) s 5J(4)(c)
In considering whether the persecution the applicant fears is for reasons of her race, religion, nationality, membership of a particular social group or political opinion, the Tribunal considers that it is for the combined reasons of the applicant’s sexual orientation as a lesbian and her Muslim religion. The Tribunal has had regard to the country information mentioned above, specifically the syariah law criminalising sexual activity between women, which applies to the applicant because of her sexual orientation as a lesbian and her Muslim religion.
For these reasons, the Tribunal considers that the persecution the applicant fears is directed at her for the combined reasons of her membership of the particular social group ‘lesbian women in Malaysia’ and her Muslim religion. The Tribunal considers that the group of ‘lesbian women in Malaysia’ is identifiable by the characteristics of sexual orientation and nationality and the common characteristics or attributes are not a shared fear of persecution.[18] Therefore, the Tribunal is satisfied that the persecution the applicant fears is for reason of her membership of a particular social group and her religion for the purpose of s 5J(1)(a) of the Act.
[18] Migration Act (n 6) s 5L
The Tribunal finds the applicant faces a real chance of persecution if she returns to Malaysia for reason of her being a lesbian Muslim woman, and that this is the essential and significant reason for the persecution.[19]
[19] Migration Act (n 6) s 5J(4)(a)
Based on the country information and having regard to the laws prohibiting same-sex relationships, the Tribunal finds that the state is one of the agents of persecution and is satisfied that effective protection mechanisms would not be available to the applicant if she were to return to Malaysia.[20]
[20] Migration Act (n 6) s 5J(2)
The applicant gave evidence to the Tribunal, which the Tribunal accepts, that as the same law applies throughout all of Malaysia, there is no part of Malaysia in which she would be safe from harm. The Tribunal finds that the real chance of persecution applies to all areas of Malaysia.[21]
[21] Migration Act (n 6) s 5J(1)(c)
The applicant gave evidence to the Tribunal, and the Tribunal accepts, that the applicant does not have a right to live in any other country. There is nothing before the Tribunal to indicate the applicant has a right to enter and reside in any other country.
For the reasons given above, the Tribunal finds that s 36(3) of the Act does not apply in the circumstances of this case.[22]
[22] Migration Act (n 6) s 36(3)
The Tribunal finds the applicant has a well-founded fear of persecution if she is returned to Malaysia now or in the reasonably foreseeable future.
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) of the Act.
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 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.
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receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear of 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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