2106095 (Refugee) - [2025] ARTA 1810

2106095 (REFUGEE) [2025] ARTA 1810 (25 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2106095
Tribunal:General Member R Johnston
Date:25 July 2025

Place:Sydney
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 25 July 2025 at 9:36am
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from business investors, debt collectors and authorities – business partners absconded after illegal investment failed – applicant convicted and company assets impounded – application prepared by another person without applicant’s knowledge of contents – new claims as ethnic Chinese and homosexual man – no adverse inference drawn – bullied at school and targeted by gang – same-sex experiences and development of identity – publicly challenged and assaulted – previous marriage to woman in third country and relationship with man in Australia – other activities and short-term relationships – fear of harm from community and police – delay in applying for protection and return travel – detailed and consistent evidence – country information – low levels of official discrimination as ethnic Chinese – laws and general intolerance of same-sex identities and behaviours in conservative Muslim nation – violence perpetrated or condoned by police and discrimination in healthcare and employment – high risk of official discrimination and moderate risk of societal discrimination in rural area – socio-economic and personal profile – long residence in third country and Australia – modification of behaviour precluded – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 5H(1)(a), 5J(1)(a), (3)(c)(vi), (4)(b), 36(2)(a), 65, 359A, 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 for Home Affairs on 27 April 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 15 January 2021. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
The applicant lodged a protection visa application on 15 January 2021. In that application he provided the following:
·     He was born in [Year] in Sarawak, Malaysia. He has never married.
·     He lived between [Birth] and June 2011 in Sibu, Sarawak. He lived from [June] 2011 in Australia.
·     He is Chinese Malay and a Buddhist. He has never studied and never been employed.
The applicant makes the following claims in his protection visa application form:
·     He is seeking protection from and cannot return to Malaysia.
·     In 2010 he decided to close down the business because he was betrayed by his business partners. He had taken out all the business profits and investor’s funds to invest in a multi-level marketing investment company. The company declared that their investment ran a loss but the local government found that they are a money games company.
·     The Malaysian department took action to freeze the bank account for investigation.
·     The business investors found that his business partners had made a wrong investment but illegally invested into a money games company so asked for a full refund but his business partner ran away to hide and left him alone to handle the case.
·     Some of the investors made a report to the police department and the authority department called him up for an investigation. They lodged a report to the authorities and he is the only one who was convicted. His company assets were impounded by the authorities and the investors came to his house to harm him and his family members.
·     His family members advised him to leave the country for security purposes. He entered Australia with a visitor visa but overstayed. He has now applied for a protection visa. If he returns back to Malaysia he will be harmed or killed by the investors because they have a gangster background.
·     The investors appointed debt collectors to come to his home and harm him. He made a report to the police department but the police still were not able to catch them.
·     His movement is very limited in his home country because the authorities can easily track him. The debt collectors mentioned killing him with a showed pistol so he does not want to take the risk.
·     He may be harmed again by the debt collectors or killed by them. He will be harmed if arrested by the authorities, even worse if he is captured by investor debt collectors although it was not his mistake.
·     The authorities would not provide him with any kind of protection as 24 hours protection.
·     He is unable to relocate to any other part of Malaysia because the investor had hired a local gangster to collect the money. He will certainly be caught by them if he returns to his home country.
Interview with the delegate
The Department did not invite the applicant to attend an interview to discuss his claims for protection.
The delegate’s decision
On 27 April 2021, a delegate of the Minister refused the applicant’s protection visa application. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that he will suffer significant harm as defined in s 36(2)(aa) of the Act. The delegate therefore found the applicant is not a person in respect of whom Australia has protection obligations.
Claims and evidence before the Tribunal
Review application
On 7 May 2021, the applicant lodged an application for review of the delegate’s decision.
The hearings
The applicant appeared before the Tribunal on 12 June 2025 and 10 July 2025 to give evidence and present arguments. No witnesses were called to give evidence in support of the applicant’s claims. The applicant was not represented in relation to the review.
The hearings were conducted with the assistance of interpreters in the Mandarin and English languages. The Tribunal confirmed with the applicant they were able to understand the interpreter at both hearings. The applicant speaks some English and did not always require the interpreters. The applicant was able to answer questions without hesitation and his answers demonstrated an understanding of the questions being put to him.
The applicant confirmed at the start of both hearings that he felt well and able to discuss his claims and background. The Tribunal reminded the applicant he could request breaks throughout the hearing as needed, in addition to scheduled breaks.
The Tribunal is satisfied that the applicant had a reasonable and genuine opportunity to present evidence and submissions, be heard, and participate fully in the hearings. Where relevant, the applicant’s oral evidence to the Tribunal is referred to in the analysis below.
Post-hearing submissions and evidence
On 23 June 2025, after the first hearing and before the resumed hearing, the applicant provided post-hearing evidence to the Tribunal. That evidence included a series of photographs of the applicant with a person described by him to be known as ‘[Mr A]’, photographs of the applicant in other social settings, an electricity bill in the applicant and [Mr A]’s names dated 21 November 2016, an Australia Post collection notice addressed to the applicant and [Mr A], and a confirmation of transfer of $4,600 which the applicant stated to be from him to [Mr A].
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.
Nationality
The applicant claims to be a citizen of Malaysia and provided a copy of the bio-data page of his Malaysian passport to the Department. The delegate was satisfied that the applicant is using his own identity and that he is a citizen of Malaysia. At hearing the applicant presented his Malaysian passport to the Tribunal. Whilst the applicant outlined at hearing that he previously married, but has now divorced, a [Country 1] national, he stated that he is not a national of any other country other than Malaysia. The applicant has consistently claimed to be a citizen of Malaysia and there is no evidence before the Tribunal that the applicant attempted to or did acquire [Country 1] nationality. In the absence of evidence to the contrary, the Tribunal finds the applicant is a citizen of Malaysia and Malaysia is his receiving country for the purposes of assessing his claims for protection.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration
In the hearing, the Tribunal discussed the applicant’s protection claims, what he claims occurred in Malaysia, why he fears returning to Malaysia, and his work, family, relationship, education, and residential history. He claimed at hearing that he will be harmed on return to Malaysia as a homosexual man. He also raised concerns about his Chinese Malay ethnicity and in respect of gangster groups in his hometown of Sarawak. Each of these claims are addressed in further detail below.
Adverse inference not drawn under s 367A of the Act
The applicant outlined at hearing that he did not know what claims were made in his written protection visa application and that he did not rely on them. He explained the background to his written protection visa application, including that his migration agent gave him incorrect advice about what was required in his initial protection visa application and that his migration agent did not give him details about his application when he made enquiries.
The Tribunal found the applicant to be a reliable and straight-forward witness at hearing. He provided spontaneous, detailed, and reflective evidence about his life and claims without embellishment. It accepts he did not receive correct advice in respect of his initial protection visa application, has a reasonable explanation for why his claims raised at hearing were not raised before the Departmental delegate made their decision, and does not draw an inference unfavourable to the credibility of the applicant’s claims as raised in his oral evidence before the Tribunal.
As discussed with the applicant at hearing, and given the above, the Tribunal does not accept the applicant’s written claims in respect of the closure of his business in 2010 or harm from investors or the Malaysian police or government. The applicant confirmed at hearing that these claims were not his own and instead were written by his former agent and he resiled from them.
Claims in respect of the applicant’s Chinese Malay ethnicity and harm from gangsters
The applicant detailed in his oral evidence that Malaysia is not a fair country, with a lot of racism towards Chinese Malays. He detailed being bullied and hit at school by older students and how a gangster group in Sarawak targeted him when he was about fifteen years of age owing to his ethnicity, socio-economic status, and small size. He stated teachers did not help him in Malaysia as they only helped people from the same race and economic background. He outlined how he witnessed when he was about twenty years of age, and in a big group of people in his hometown, the gangster group start a fight with and murder someone, and even though reports were made to the police, including from himself, the perpetrator was able to walk away freely the next day.
In providing his personal background the applicant explained how he was unhappy in school owing to the bullying and ultimately left school early and before high school to work in Malaysia in [job tasks] work. He did not detail in his evidence that he had any further contact from the school bullies or the gangster group in discussing his post-school work life in Malaysia. When asked if he experienced any repercussions from the gangster group for having witnessed the murder he explained how it occurred in the central business district and a lot of people saw it and were discussing it.
The Tribunal accepts the applicant’s personal background as detailed at hearing. It accepts he was bullied in school and by a gangster group when he was about fifteen years of age owing to his Chinese Malay ethnicity, small stature, and limited socio-economic circumstances. It accepts he, among a larger group of people, witnessed the gangster group murder a person when he was about twenty years of age without consequence from the police.
Given the passage of time since the applicant experienced issues in Malaysia and from the high school bullies and gangsters, the Tribunal raised with him its concern as to whether he faces a real chance of serious harm or a real risk of significant harm on return to Malaysia in the reasonably foreseeable future from the gangsters, bullies, or in connection to the murder he witnessed. He responded that his experience in Malaysia was that he could be walking on the street and they would look at him and come to hit him. He stated at hearing that Chinese Malaysians are not treated equally. Whilst the Tribunal accepts the applicant’s account of the bullying and harm he experienced from the gangster group, it did not find the applicant’s response overcame its concerns as to his circumstances on return to Malaysia from the bullies or gangster group.
In respect of his broader concerns about harm and discrimination in connection to his Chinese Malay ethnicity, the Tribunal raised with him that DFAT report there are no laws or constitutional provisions that directly discriminate against Chinese Malaysians in Malaysia[1] and although Malays and the natives of any of the States of Sabah or Sarawak are afforded a special position in the Malaysian Constitution, the Constitution itself forbids discrimination against citizens based on religion or race[2]. It raised with him that Chinese Malaysians are Malaysia’s second largest ethnic group, reportedly comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia[3]. It explained DFAT assesses that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system and the civil service, including when seeking a promotion, or when opening or operating a business in the private sector[4].
[1] DFAT(24 June 2024), Country Information Report - Malaysia, 3.12, 15.
[2] DFAT(24 June 2024), Country Information Report - Malaysia, 3.2, 14.
[3] DFAT(24 June 2024), Country Information Report - Malaysia, 3.11, 15.
[4] DFAT(24 June 2024), Country Information Report - Malaysia, 3.15, 16.
In the Tribunal raising its concern with him that it may not find he races a real chance of serious harm or a real risk of significant harm on return to Malaysia owing to his Chinese Malay ethnicity or social-economic status, the applicant stated his hometown is a small city and has a problem with corruption and power operates within a small group which have authority. Whilst the Tribunal accepts the applicant resided in Malaysia in a small town in Sarawak and that he observed issues of corruption whilst in Malaysia, the Tribunal did not find his response overcame its concerns.
Claims in respect of the applicant’s homosexuality
The applicant provided heartfelt, personal, and reflective evidence at hearing about his past history of harm in Malaysia, past relationship in Malaysia, marriage to his former wife in Australia, relationships with men in Australia, and development of his identity as a homosexual man.

He explained at hearing, and the Tribunal accepts, that he realised at about thirteen years of age that he had a strange feeling and questioned why he was not attracted to the opposite sex and instead was always around boys and attracted to them. He detailed having a relationship in Malaysia at thirteen years of age with a boy he knew from the same area. He provided detailed and spontaneous evidence of how they both developed feelings for each other, would hang out at night but not during the day, had chemistry and connected, and would hold hands and kiss, although nothing else happened at that age.
The applicant detailed going to a bar with his boyfriend in Malaysia at about fourteen years of age and being discriminated against, bullied, and harmed in the Malaysian community and at school. He outlined how the local Malay Muslims talked about him and his boyfriend, even though they were not in a public relationship, using dirty language against him and berating him as to why he doesn’t want to be a proper man. He detailed how at school he was seen holding hands with his boyfriend, leading him to be slapped, punched, and told in a Muslim world he cannot be like that and contaminate the place. He explained how he and his boyfriend were never affectionate in public once they had been discovered holding hands and how they only dared hold hands whilst at home.
The Tribunal accepts the applicant’s oral evidence as to his discovery of his homosexuality as a young boy and his relationship in Malaysia and experience of harm there. It also accepts after the applicant was beaten and punched he discussed with his mother the reasons why he was assaulted, leading her to become very upset, ask him why he has to be so close to boys, and tell him he must be a man, leading him to hide his relationship with his boyfriend. The Tribunal accepts at approximately eighteen years of age the applicant revealed to his mother again that he preferred to be with men, leading her to again become upset, and ultimately for the applicant to relocate to [Country 2] for a period of nine years. The applicant provided detailed, consistent, and heartfelt evidence in respect of his personal background.
The applicant also provided the Tribunal with a detailed account of his relationship history in [Country 2] and Australia and the circumstances that led him to marry, and ultimately divorce his wife. He explained he left Malaysia for [Country 2] as he wanted to be treated as an equal and without discrimination. He detailed that he met his ex-wife in [Country 2] in approximately 2008 or 2009, that she is a [Country 1] national, and together they decided to move to Australia. In discussing with the applicant his relationship with his former wife and his marriage to her in Malaysia in 2015, he stated that he never truly had any chemical or romantic feelings for his wife and he married her to make his mother happy. He outlined how he took his wife to Malaysia in 2015 and his mother was really happy. He detailed having two children with his ex-wife, in 2016 and 2018, and how the relationship ultimately ended as he was in a different relationship with a man called [Mr A] and he and his wife had a lot of arguments.
The Tribunal explored with the applicant in detail at the hearings how he met [Mr A] and the circumstances of that relationship whilst he was still married to his wife. He detailed how despite his marriage, his feelings for men always remained. The Tribunal accepts the applicant was quarrelling with his wife at lot in approximately 2015 and that he met [Mr A] at approximately that time at a [workplace] he visited in Australia and where [Mr A] was working. The Tribunal accepts the applicant and [Mr A] commenced seeing each other outside the [workplace], had dinners and other social interactions with friends, and progressively started an intimate relationship after about one or two months of meeting.
Whilst the applicant’s ex-wife did not know about his relationship with [Mr A] at the beginning, the applicant explained at hearing that she came to have knowledge of his relationship with [Mr A] after about six months or a year. He detailed having two relationships at once, and spending time living with [Mr A] and with his ex-wife, before his ex-wife discovered his relationship with [Mr A] and regular attendance at the [workplace]. He provided specific details of how his wife did not accept his relationship with [Mr A] and how their marriage did not immediately end, but there was no affection between them, leading him to live at two places for a period.
The applicant has provided the Tribunal with extensive corroborative evidence documenting his relationship with [Mr A]. At hearing he provided detailed evidence in respect of his supporting documentation, explaining he and [Mr A] attended various dinner parties with other homosexual couples and men and where he was known to be in a relationship with [Mr A]. He has provided the Tribunal with photographs of him and [Mr A] with his sister in Australia and together in social and intimate settings. He has provided photographs of him and [Mr A] travelling to [Country 1, which he detailed at hearing was a trip he took with [Mr A] to visit and stay with [Mr A]’s family as [Mr A]’s boyfriend. He has also provided the Tribunal with documentation evidencing his shared residence with [Mr A] prior to 2019, including Australia Post collection notices addressed to himself and [Mr A], and an electricity account in his and [Mr A]’s names.
The Tribunal accepts the applicant maintained a relationship with his ex-wife and [Mr A] for a period of a couple of years, and that he lived with [Mr A] at a shared address in Australia for approximately two years. It accepts the applicant provided a financial contribution towards [Mr A]’s immigration matters, as documented by a bank transfer receipt he provided the Tribunal. The Tribunal accepts in late 2018 the applicant’s relationship with [Mr A] came to an end, after [Mr A] disagreed with the applicant travelling to [Country 1] with his then wife for the birth of their second child and owing to the applicant’s limited financial income and poor overall financial situation. The Tribunal accepts the applicant came to identify exclusively as a homosexual man and that he could not maintain his relationship with his wife, leading him in 2018 to urge his ex-wife to divorce him, and his ex-wife to move back to [Country 1] with his children.
The applicant detailed at hearing that he lived his life openly with [Mr A] in Australia and expressed his sexuality openly in the community without issue. He outlined how his friends in Australia knew about his relationship with [Mr A] and of his homosexuality. The applicant explained at hearing, and the Tribunal accepts, that he has had other intimate relationships in Australia with men after the demise of his relationship with [Mr A], although no other long term relationship. It accepts he has not had any relationships or intimate encounters with women since the demise of his marital relationship in 2018. It accepts he has friends in Australia who identity as homosexuals and whom he has travelled with and who he socialises with. The photographs the applicant provided the Tribunal with after the initial hearing document his social activities and travel with his homosexual friends.
The Tribunal did have some reservations as to the applicant’s fear of harm on return to Malaysia given his delay in seeking protection in Australia and his return travel to Malaysia after his initial arrival in Australia. The Tribunal raised with him in accordance with s 359A of the Act that movement records before it indicated he initially arrived in Australia [in] June 2011 and departed Australia several times across 2013 to 2017 on flights bound for Kuala Lumpur and [City in Country 1]. He did not lodge his protection visa until 15 January 2021. In discussing his travel and return to Malaysia with him in detail, the applicant explained he went to Malaysia in 2015 with his ex-wife to get married in his hometown in Sarawak. He detailed returning to Malaysia in 2017 with his mother who had been in Australia taking care of his daughter and staying there for approximately three months whilst he arranged travel documents. He explained of the other departures from Australia that they were trips to [Country 1], and he would often book connecting flights to [Country 1] from Malaysia depending on the airfare. He provided straight-forward and detailed evidence about the circumstances in which he travelled with and without his family to Malaysia and [Country 1] and the reasons for each trip. In the context of the applicant’s emerging homosexuality and demise of his relationship with his ex-wife, the Tribunal does not draw an adverse credibility finding as to the applicant’s return travel to Malaysia prior to 2018, nor his delay in seeking protection in Australia. It accepts the applicant, in coming to accept his personal identity as a homosexual man and desire to live his life openly and exclusively as a homosexual man, developed an increasing fear of returning to Malaysia after the end of his marriage in 2018 and of the harm he will face there.
As to his relationship with his mother now, and other siblings in Malaysia and Australia, he updated the Tribunal at hearing that he has not told his mother about his divorce or discussed his sexuality with her since their initial conversations back before he left Malaysia. He detailed that his mother knows his ex-wife and children live in [Country 1], although she believes they have maintained their relationship across [Country 1] and Australia. He outlined to the Tribunal that he believes his mother now knows about his homosexuality, although he has not revealed this to her directly, as she met [Mr A] whilst in Australia and he believes she knew they were more than friends. He reflected that he believes his mother has reacted in the way she has to him being with a man as she was worried for his life in Malaysia, being a Muslim country, and that he would experience trouble. He stated he believes she will gradually accept his homosexuality, although he doesn’t want to discuss it with her and give her more health issues.
The applicant gave frank evidence at hearing that he believes his mother and [brothers] in Malaysia who live with his mother will provide him with a level of support on return to Malaysia and in time accept his homosexuality. However, he stated he could not live life openly in Malaysia as a homosexual man. He outlined how he wants to be in a relationship with a same sex partner, but it is not possible in Malaysia as it is a Muslim country and he will be discriminated against and harmed. He stated he could not dare show any intimacy with male partners in the public and would be confined to living his life in a private space. He detailed having some friends who remain in Sarawak and who also identify as homosexuals and how they have experienced harm in Malaysia and as a result live their lives privately and not in the open. He did not detail any other connections in Malaysia.
The Tribunal found the applicant to provide detailed and considered evidence at hearing as to his circumstances on return to Malaysia in the reasonably foreseeable future. The Tribunal accepts if he returns to Malaysia he will engage in same sex intimate relationships, seek to live his life as a homosexual man, and that his family will offer him a degree of support on his return to Malaysia in circumstances where they come to have knowledge that he is a homosexual man. It accepts he has friends in Sarawak who identify as homosexuals and that they live their lives privately and have experienced harm in the Malaysian community as a result of their same sex attraction. The Tribunal accepts the applicant does not have any connections in Malaysia outside of Sarawak.
Does the applicant satisfy the refugee criterion for protection?
The applicant claims if he returns to Malaysia he will be harmed as a homosexual man seeking to live his life openly in the Malaysian community. He also raised concerns that he will be discriminated against on account of his ethnicity as a Chinese Malaysian and that he will be harmed by bullies and gangsters in Sarawak.
The Tribunal has accepted the applicant identifies as a homosexual man, that he was in an approximately two year long relationship in Australia with a man named [Mr A], that he has lived his life openly as a homosexual man in Australia since 2018, that he has had other intimate same sex encounters with men in Australia, and that he has friendships with homosexual men in Australia. It has accepted whilst his mother initially got angry when he was younger in response to the applicant’s discussion with her of his same sex attraction, that he believes his mother and [brothers] in Sarawak would offer him a degree of acceptance and support if he returned to Malaysia and lived there as a homosexual man. It has accepted he was bullied whilst he was younger by a group of older boys and gangsters in Sarawak and that he witnessed, in a larger group of people, a member of a gang group in Sarawak murder someone.
At hearing the applicant explained, and the Tribunal accepts, if he returns to Malaysia, he will live with his mother in Sarawak and take care of her.
Claims in respect of the applicant’s business and harm from investors and police
As outlined above, the Tribunal has not accepted the applicant’s written protection claims in his initial protection visa application that he operated a business and ever experienced harm from investors or the Malaysian police or government in respect of the closure of the business. Given this, the Tribunal finds the applicant does not face a real chance of serious harm on return to Malaysia in the reasonably foreseeable future from investors, the police, or the Malaysian government in respect of any business.
Claims in respect of the applicant’s Chinese Malay ethnicity and harm from gangsters
The Tribunal considered the applicant’s claim he will be harmed and suffer discrimination on return to Malaysia from bullies and gangsters operating in Sarawak and in respect of his Chinese Malay ethnicity.
The Tribunal has accepted the applicant was bullied and hit at school and targeted in the Malaysian community by a gangster group given his size, lower socio-economic status, and Chinese Malay ethnicity. The evidence before the Tribunal indicates that whilst the applicant was bullied and targeted by the gangster group when he was about fifteen years of age, and that he witnessed a murder in Sarawak involving the gangster group at approximately twenty years of age, he was not the ongoing target of harm from the gangster group or bullies once he left school and in his later teenage years before he departed Malaysia for [Country 2]. The applicant was able to remain in Malaysia until his twenties without further issue or harm from the bullies or gangster group. He was able to return to Sarawak and stay for three months after his initial arrival in Australia without issue from gangsters or bullies.
The applicant has not had any contact with the bullies or gangster group in over fifteen years and there is no evidence before the Tribunal that the gangster group or bullies have threatened the applicant on his return to Malaysia in any way. The applicant did not find the applicant’s evidence that the gangster group or bullies would in the past hit him when he was walking past them persuasive as to why he will be a target of harm from the group or bullies in the reasonably foreseeable future given the passage of time since he has interacted with or experienced any issues from them. Given these factors, the Tribunal finds there is no real chance the applicant will experience harm from the gangster group or bullies on return to Malaysia in the reasonably foreseeable future.
The Tribunal considered the applicant’s broader concern that he will be discriminated against on return to Malaysia as an ethnically Chinese Malay. When the Tribunal discussed country information with the applicant at hearing that indicates DFAT assesses that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system and the civil service, including when seeking a promotion, or when opening or operating a business in the private sector, he detailed issues of corruption and power within his hometown in Sarawak when he lived there, although did not provide the Tribunal with any persuasive evidence as to why he will be a target of harm on account of his Chinese Malay ethnicity in the Malaysian community, in a workplace, or in any other setting on return to Malaysia. Whilst the Tribunal accepts the applicant’s Chinese Malay ethnicity was a factor in the bullying he received whilst at school and in the community from the gangster group, as outlined above it has found there is no real chance a gangster group or bullies will continue to target or harm in on return to Malaysia for any reason. There is no persuasive evidence before the Tribunal that he is a target of harm from any other person or group on account of his Chinese Malaysian ethnicity. Given the above and considering the evidence before it, the Tribunal finds there is no real chance the applicant will face harm on return to Malaysia in the reasonably foreseeable future on account of his Chinese Malay ethnicity.
Claims in respect of the applicant’s homosexuality
The Tribunal considered the applicant’s claim that he will be harmed on return to Malaysia on account of his homosexuality. For the following reasons, and having regard to the findings above, the Tribunal is satisfied there is a real chance that the applicant will suffer serious harm upon return to Malaysia in the reasonably foreseeable future as a homosexual man.
The Tribunal accepts the applicant holds subjective fears of being persecuted and suffering serious harm on return to Malaysia because of his homosexuality.
The Tribunal accepts that the applicant fears harm on return to Malaysia for reason of his membership of a particular social group in accordance with s 5J(1)(a) of the Act, being homosexual men in Malaysia. The Tribunal finds that homosexual men in Malaysia share or are perceived of sharing characteristics, other than a fear of persecution, that are innate or immutable, so fundamental to a member’s identity or conscience that they should not be forced to renounce it, and that distinguish them as a group from society.
The Tribunal has considered whether the applicant will face a real chance of serious harm if he returns to Malaysia now or in the reasonably foreseeable future on account of his being a homosexual man in Malaysia.
In discussing the harm he fears on return to Malaysia, the applicant stated the only place he believes he will be able to live his life as a homosexual man is in the confines of his own home. He expressed fears of being harmed in the community, by the police, and specifically by ethnic Malays on account of his homosexuality, and detailed that he could not live his life openly with a partner in Malaysia or ever get married as it is against the law. He detailed how the police specifically discriminate against homosexuals and how he believes he will be harmed or threatened even if he lived in a larger city such as Kuala Lumpur. He expressed fears of being a specific target of harm in Malaysia as a Chinese Malay homosexual man as racial discrimination in the country would exacerbate the degree to which he will be discriminated against and harmed for going against the dominant Muslim religion and laws.
Country information before the Tribunal indicates that as a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours and adult same-sex acts are illegal in Malaysia[5]. DFAT report across Malaysia there are 52 laws that criminalise different forms of LGBTQIA+ behaviour, with prosecutions taking 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. They outline numerous state-level syariah-based laws prohibit same-sex relations and non-normative gender expression[6].
[5] DFAT(24 June 2024), Country Information Report - Malaysia, 3.126, 32.
[6] DFAT(24 June 2024), Country Information Report - Malaysia, 3.127, 32.

The United States Department of State outline that across 2023 violence against lesbian, gay, bisexual, transgender, queer, and intersex persons in Malaysia was common, and that police at times perpetrated and condoned such violence[7]. They reported in 2023 that LGBTQIA+ persons experienced discrimination in employment, housing and access to some government services because of their sexuality and that the law did not prohibit discrimination based on sexual orientation, gender identity or expression[8]. DFAT similarly report that gay men and men who have sex with men experienced employment discrimination[9]. Visibly effeminate gay men are reportedly more likely to suffer harassment and discrimination[10]. Other reports indicate the laws that criminalise LGBTQIA+ persons have had a systemic, direct, and indirect impact on LGBTQIA+ persons’ access to healthcare and employment and impact the degree to which LGBTQIA+ persons are discriminated against and through which they are able to combat violence and discrimination[11].
[7] United States Department of State, 2023 Country Report on Human Rights Practices: Malaysia.
[8] United States Department of State, 2023 Country Report on Human Rights Practices: Malaysia.
[9] DFAT(24 June 2024), Country Information Report - Malaysia, 3.130, 3.136, 32-33.
[10] DFAT(24 June 2024), Country Information Report - Malaysia, 3.135, 33.
[11] ARROW (2020), Monitoring Report: LGBTIQ+ Rights in Malaysia, 2020.
There are reports of gay, bisexual and other men who have sex with men in Malaysia experiencing high levels of stigma and discrimination in health care, with a study indicating most physicians expressed some degree of intention to discriminate against men who have sex with men[12]. Media reports also refer to censorship of the spread of LGBTQIA+ content, with rights groups reported to estimate that it accounted for nearly half of all banned publications between 2020 and May 2025[13].
[12] Zhao Ni et. al. (2 March 2023), ‘Exploring Malaysian Physicians’ Intention to Discriminate Against Gay, Bisexual, and Other Men Who Have Sex with Men Patients’, LGBT Health, 10(2), 169-175.
[13] Joseph Sipalan (17 July 2025), ‘”Gay party” raid: Malaysian police in Kelantan detain over 20 men’, South China Morning Post.
Whilst government stances on LGBTQIA+ issues apply to all people within Malaysia, DFAT report that the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and penal code offences. It is reported the National Department of Islamic Development (JAKIM) and other state level religious authorities have occasionally conducted raids on LGBTQIA+ events[14]. Rehabilitation and re-education programs aimed at changing sexual orientation or gender identity, known as conversion therapy, are reported to be primarily aimed a Muslims[15], although there are reports of federal government funded rehabilitation retreats aimed at LGBTQIA+ individuals to provide religious guidance and a cure for their sexuality[16]. The United Kingdom in their July 2024 country policy and information note on sexual orientation and gender identity or expression in Malaysia similarly report that Muslims and people forced to undergo conversion therapy practices are at risk of persecution and serious harm, particularly where same-sex sexual acts are prosecuted under Sharia law[17]. They also report an increased risk of harm in respect of trans people who are open about their gender identity and that that there is strong social taboo in relation to LGBTQIA+ issues among Muslims[18].
[14] DFAT(24 June 2024), Country Information Report - Malaysia, 3.130, 3.136, 32-33.
[15] DFAT(24 June 2024), Country Information Report - Malaysia, 3.132, 32.
[16] United States Department of State, 2023 Country Report on Human Rights Practices: Malaysia.
[17] United Kingdom Home Office (July 2024), Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, 6.
[18] United Kingdom Home Office (July 2024), Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, 10-11.
Whilst the country information before the Tribunal indicates the impact of Malaysia’s anti-LGBTQIA+ laws and moral stance on LGBTQIA+ issues and people are more significant for Malay Muslims, there are reports that other ethnic and religious groups in Malaysia have been subject to moral policing, arrest during police raids, and arrets in public. The International Commission of Jurists report that the criminalisation of LGBTQIA+ persons in Malaysia exposes them to threats, harassment, extortion, arbitrary detention and violence in public spaces or at private events where LGBTQIA+ people are known to be in attendance[19]. A study examining the social receptivity towards LGBTQIA+ people in Malaysia has reported on the impact of adherence to traditional Chinese cultural values and beliefs about family, marriage and kinship in influencing community attitudes in broader Malaysia against LGBTQIA+ persons[20].
[19] International Commission of Jurists (2021), Invisible, Isolated and Ignored: Human Rights Abuses Based on Sexual Orientation and Gender Identity/Expression in Colombia, South Africa and Malaysia, 2021.
[20] Collin Jerome et. al, (March 2021) ‘Examining Discrepant Views of LGBT and Non-LGBT Individuals on Societal Receptivity Towards the LGBT Phenomenon in Present-Day Malaysia’, International Journal of Social Science Research, Volume 3, No 1, March 2021.
DFAT report that the level and frequency of discrimination faced by members of the LGBTQIA+ community differs according to their sexual orientation and gender identity, socio-economic status, religion, geographic location, and the degree of openness regarding their sexual orientation and gender identity[21]. They outline that well-educated urban LGBTQIA+ individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than poorer individuals in rural areas. In-country sources reported to DFAT that people in Kuala Lumpur were generally more accepting of LGBTQIA+ people than in East Coast peninsular Malaysia or Sarawak and Sabah[22]. The United Kingdom similarly report that the degree of discrimination LGBTQIA+ people face in Malaysia depends on whether they are well-educated, wealthy, and on their socio-economic class, and that Kuala Lumpur is more accepting of LGBTQIA+ persons than Sarawak or Sabah[23]. Whilst they report LGBTQIA+ persons experiencing discrimination, stigma, threats, and violence, they outline that there are no official statistics to determine the scale, frequency, and severity of those incidents[24].
[21] DFAT(24 June 2024), Country Information Report - Malaysia, 3.147, 35.
[22] DFAT(24 June 2024), Country Information Report - Malaysia, 3.147, 35.
[23] United Kingdom Home Office (July 2024), Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, 11.
[24] United Kingdom Home Office (July 2024), Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, 11.
Although there are reports that LGBTQIA+ clubs are generally able to operate without state interference, and that protests and rallies are generally able to take place[25], there are reports from May 2025 that Malaysia’s Religious Affairs Minister has called for a police probe on a planned LGBTQIA+ event, seeking the organisers to cease all activities that ‘violate the law and moral values of society’[26]. Media reports from 2024 indicate that a Malaysian music festival was shut down after a band’s male frontman kissed a man onstage and criticised the country’s anti-LGBTQIA+ laws[27]. In June 2025 the Malaysian authorities arrested more than a dozen men in Kelantan during a late night raid of a gay party[28]. It is reported individuals at the party were found in possession of homosexual pornographic material and were being investigated under s 292 of the Penal Code[29]. Recent country information indicates a planned LGBTQIA+ forum was indefinitely postponed after online attacks and government criticism, with the government expressing such acts were not accepted by Muslims and non-Muslims alike[30]. DFAT have also reported the police stopping people to have their phones checked for LGBTQIA+-related messages and dating apps such as Grindr, particularly during COVID-19 pandemic lockdowns[31].
[25] United Kingdom Home Office (July 2024), Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, 8-9.
[26] CNA (29 May 2025) ‘Malaysia minister seeks police probe on upcoming LGBTQ event, says it “violates moral values”’ CNA.
[27] ABC News (1 August 2024) ‘The 1975 sued for $3.76 million over “gay kiss” that got Malaysia’s Good Vibes festival cancelled’, ABC News.
[28] The Straits Times (17 July 2025), ‘Malaysian police arrest more than dozen men in raid of ‘gay party’, The Straits Times.
[29] The Star (17 July 2025), ‘Kelantan police raid “gay party” in Kemumin’, The Star.
[30] The New York Times (31 May 2025) ‘Gay-Themed Forum is Cancelled in Malaysia’, The New York Times.
[31] DFAT(24 June 2024), Country Information Report - Malaysia, 3.136, 33.
DFAT assesses that LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities[32]. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. They report that LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence[33].
[32] DFAT(24 June 2024), Country Information Report - Malaysia, 3.148, 35.
[33] DFAT(24 June 2024), Country Information Report - Malaysia, 3.148, 35.
The Tribunal discussed aspects of this country information with the applicant at hearing, asking him in the context of the country information why he believes he will be targeted on return to Malaysia as an ethnically Chinese Malay homosexual and given his particular socio-economic profile. He reflected that whilst he has not resided in Malaysia for over twenty years, there has always been a level of scrutiny on Chinese Malaysians and they have been subject to bullying and discrimination. He outlined how he is not from a wealthy family, was born in and lived in rural Sarawak, and does not have any assets or savings.
In discussing with the applicant the country information as it related to Kuala Lumpur and DFAT’s commentary that well-educated urban LGBTQIA+ individuals of higher socio-economic status are less likely to have to hide their sexuality, he discussed his experience of how Malaysians from Sarawak and Sabah are looked down upon by Malaysians from Kuala Lumpur and the hierarchy in Kuala Lumpur would impact his social standing as he would be identifiable as someone from a rural area. He detailed having no savings in Australia and nothing but a vehicle and his inability to relocate and survive in Kuala Lumpur with no connections or financial backing. He expressed his fears that anywhere in Malaysia, including in Kuala Lumper, he will be physically harmed for openly expressing his sexuality, and discriminated against in employment, by co-workers, and by the police, the majority of whom are Muslim.
The Tribunal found the applicant to be straight-forward in his responses and reflective as to his personal experiences in Malaysia. It acknowledges the applicant has not lived in Malaysia for a significant period and his evidence was informed by his past experiences of harm whilst a young man and his knowledge of the experiences of his homosexual friends in Sarawak. Despite the applicant’s limited recent experiences in Malaysia, it found his evidence as to the harm he will face on return to Malaysia in the context of the country information and his personal profile and circumstances to be persuasive.
Whilst the Tribunal finds the country information supports that Muslim Malay homosexual men are at increased risk of harm in Malaysia owing to their religion and the application of syariah laws, it is mindful that the treatment of LGBTQIA+ persons in Malaysia is reported to vary depending on a range of other factors and that non-Muslim Malay homosexual men remain subject to Federal laws criminalising homosexuality within the Penal Code and to other instances of discrimination, harassment, unlawful arrest, and raids. The Tribunal considers that based on the country information before it, the risk of harm to a homosexual man in Malaysia would depend on the person’s particular circumstances, including their socio-economic status, wealth, personal connections, urban or rural residence, family background and support, and the degree to which they are open about their homosexuality in different settings.
The Tribunal considered these factors and the country information in the context of the applicant’s conduct on his return to Malaysia and his specific profile in assessing whether he faces a real chance of serious harm amounting to persecution on return to Malaysia in the reasonably foreseeable future.
The Tribunal accepts the applicant will return to Sarawak. It accepts he has experienced past harm in Sarawak on account of his open display of affection towards men and that he was bullied owing to his small stature and Chinese Malay ethnicity. Whilst it accepts he will have the support of his mother and siblings on return to Sarawak and finds that he will not be harmed by them for reason of his homosexuality, the country information as outlined above indicates he will be at an increased risk of harm for reason of his homosexuality in Sarawak than within urban Malaysian cities. There are reports that the Sarawak government have reject tourism from foreign artists who criticise the federal government’s stand on homosexuality and the country’s policies[34]. DFAT expressly state that LGBTQIA+ persons in Sarawak are more likely than those in Kuala Lumpur to have to hide their sexuality and less likely to find acceptance.
[34] Malay Mail (25 July 2023) ‘Sarawak says “no” to foreign artistes against country’s stand, says state tourism minister’, Malay Mail.
The Tribunal has accepted the applicant identifies openly as a homosexual man and that he has not had any sexual relationships with women for over six years. The applicant has not resided in Malaysia for over twenty years and has lived in [Country 2] and Australia for a combined period of over twenty years, within which homosexual relationships are afforded legal protections and acknowledged by the State. It accepts on the evidence before it that whilst the applicant spent some years in Australia married to his ex-wife and hiding his relationship with [Mr A] from her, the applicant has in effect lived openly and as a gay man in Australia since approximately 2016, socialising in the community with homosexual friends and outwardly expressing his affection towards [Mr A] and other intimate partners he met at bars. It accepts he has regularly attended bars to meet men, has had casual intimate encounters with men, and has travelled within Australia with his homosexual friends. It accepts he introduced [Mr A] to his friends and sister in Australia as his boyfriend, regularly socialised openly with [Mr A] as his boyfriend, and that he travelled to meet [Mr A]’s family in [Country 1].
The evidence before the Tribunal indicates the applicant has lived his life and expressed his homosexuality openly since 2016, that he has a desire to live his life on return to Malaysia as a homosexual man, and that he seeks to be able to express his attraction to men in a variety of public and private settings. Whilst the Tribunal accepts owing to his ethnicity as a Chinese Malay the penalties that apply to Muslim Malays under syariah law will not apply to him, and that his risk of harm from the State and within the community may be lower than that of homosexual Muslim men, it acknowledges the applicant has faced direct physical harm and bullying in the past as an ethnic Chinese Malay man outwardly expression affection towards another man and that the country information indicates non-Muslim Malays remain subject to offences under the Penal Code, moral policing, arrest during police raids, and arrets in public. The Tribunal finds as a homosexual man engaging in open homosexual relationships in rural Sarawak in opposition to the dominant Muslim religion the applicant will experience societal shame, bullying, discrimination in employment, and physical harm. In this context the Tribunal finds that the risk of harm to the applicant is not remote.
Taking into account the country information referred to above, the applicant’s past history of harm in Malaysia, and the applicant’s desire to engage in open homosexual relationships in the Sarawak community, the Tribunal considers that if the applicant were to return to Sarawak now or in the reasonably foreseeable future, that there is a real chance, that is, one that cannot be discounted as remote or far-fetched, that he will be subjected to serious harm for reason of his membership of the particular social group of homosexual men in Malaysia.
The Tribunal finds that the nature of the harm inflicted on the applicant will be harassment and physical harm from community members, bullying, verbal abuse, legal penalties, harassment and harm from the police, exclusion from public spaces, stigma, ostracism, and employment discrimination. It finds the applicant will be forced to conceal his homosexuality on account of his fear of harm and to avoid harm. The Tribunal finds cumulatively the harm the applicant will face on return to Sarawak constitutes significant physical harassment or ill-treatment and psychological harm through the suppression of his expression of his sexual identity, amounting to serious harm. The Tribunal is satisfied overall the harm the applicant will face on return to Sarawak amounts to serious harm under s 5J(4)(b) of the Act.
The Tribunal finds that the persecution will be directed at the applicant for the essential and significant reason of his membership of the particular social group of homosexual men in Malaysia. The Tribunal is also satisfied the serious harm involves systematic and discriminatory conduct, with the persecution directed at the applicant being deliberate, non-random, and intentional, driven from entrenched cultural, religious, and societal anti-LGBTQIA+ sentiment and as a State and societal retaliatory response to the applicant’s homosexuality.
The applicant has clearly stated in his evidence at hearing that he wishes to live an open life in Malaysia and live publicly as a homosexual man. He has come to understand in his experiences in Australia that he does not want to live a reserved or hidden life. The Tribunal accepts that if he were to conceal his identity as a gay man on return to Malaysia, as he has stated he would need to, he would be doing so to avoid the threat of serious harm. The Tribunal finds the applicant is unable to take reasonable steps to modify his behaviour on return to Malaysia to avoid a real chance of persecution as to do so would require him to alter his sexual orientation or conceal his true sexual orientation which would be contrary to s 5J(3)(c)(vi) of the Act.
In accordance with s 5J(2) of the Act, a person does not have a well-founded fear of persecution if effective protection measures are available to the person in the receiving country. Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection. Section 5LA(2) provides a relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

The United States Department of State report in 2023 violence against lesbian, gay, bisexual, transgender, queer, and intersex persons in Malaysia was common, and that police at times perpetrated and condoned such violence[35]. Human Rights Watch reported in 2023 that officials targeted lesbian, gay, bisexual and transgender people with hateful rhetoric and crackdowns and that State-sponsored discrimination against LGBT people remained pervasive[36]. The United Kingdom reports the state is able but not willing to offer effective protection to LGBTQIA+ persons and that state authorities have been responsible for harassment, discrimination, and violence towards LGBTQIA+ persons, including reports of physical and sexual assaults by the police[37]. DFAT report of raids on homosexual venues and of police stopping people to have their phones checked for LGBTQIA+-related messages and dating apps[38]. As outlined above, Malaysia’s Religious Affairs Minister has called for restrictions on certain LGBTQIA+ social activity, on the basis they violate the law and moral values of society[39].
[35] United States Department of State, 2023 Country Report on Human Rights Practices: Malaysia.
[36] Human Rights Watch, World Report 2024, Malaysia: Events of 2023.
[37] United Kingdom Home Office (20 July 2024), Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, 13.
[38] DFAT(24 June 2024), Country Information Report - Malaysia, 3.136, 33.
[39] CNA (29 May 2025) ‘Malaysia minister seeks police probe on upcoming LGBTQ event, says it “violates moral values”’ CNA.
Considering the country information before it the Tribunal is satisfied that effective protection measures would not be provided to the applicant by the Malaysian State in respect of the harm he fears regarding his homosexuality. Although Malaysian authorities exist, the country information indicates the authorities are agents of harm against members of the LGBTQIA+ community. Given this, the Tribunal finds they are not willing to offer effective protection. The Tribunal is satisfied that effective state protection is not available to the applicant in Malaysia.
The Tribunal considered whether the applicant will face a real chance of harm owing to his homosexuality across all areas of Malaysia, in addition to Sarawak. Section 5J(1)(c) of the Act provides the real chance of persecution must relate to all areas of the receiving country. The country information referred to above indicates Malaysia is a conversative Islamic nation and is generally intolerant of LGBTQIA+ identities and behaviours. Whilst DFAT report that people in Kuala Lumpur are generally more accepting of LGBTQIA+ people than in East Coast peninsula Malaysia or Sarawak and Sabah[40], they also report that it is well-educated urban LGBTQIA+ individuals of high socio-economic status that are less likely to have to hide their sexuality within their family and social circles and that the level and frequency of discrimination faced by members of the LGBTQIA+ community differs according to their sexual orientation and gender identity, socio-economic status, religion, and the degree of openness regarding their sexual orientation and gender identity[41].
[40] DFAT (24 June 2024), Country Information Report - Malaysia, 3.147, 35.
[41] DFAT(24 June 2024), Country Information Report – Malaysia, 3.147, 35.
As outlined above, the applicant wishes to live an open life in Malaysia and to have open homosexual relationships where he can display physical intimacy in the Malaysian community. The applicant has lived an open homosexual life in Australia for a significant number of years without issue and is used to outward displays of his homosexuality and towards his same-sex partners. His recent experience is not one of reserved expression of his homosexuality or a desire to maintain the privacy of his sexuality. The evidence before the Tribunal indicates whilst he initially married his ex-wife to appease his mother and that he lived in a heterosexual relationship for a number of years, he ultimately ended that relationship owing to his acceptance of his homosexuality and his inability to live his life other than as an openly homosexual man.
The country information before the Tribunal indicates that raids on LGBTQIA+ venues have not been restricted to less urban communities in Malaysia and that raids at LGBTQIA+ social events in Kuala Lumpur have also occurred[42]. Whilst the country information indicates the risk of harm to homosexual men in Malaysia and in urban centres such as Kuala Lumpur may be minimised on account of socio-economic factors and social structures, the Tribunal finds on the evidence before it that the applicant does not possess the level of wealth, status, education, or employment that may assist to minimise his exposure to harm in the Malaysian community and from the Malaysian State.
[42] VOA News (30 October 2022) ‘Malaysian Authorities Raid LGBT Halloween Party’, VAO News.
The Tribunal accepts that the applicant does not have any personal connections in Kuala Lumpur and that he will struggle, on account of his lower social status, former rural upbringing in Sarawak, and limited socio-economic background to interact and socialise with upper-income and higher socio-economic status homosexual men in Kuala Lumpur from established social circles. Whilst the applicant has lived in an urban environment in Australia and [Country 2] for nearly the entirety of his adult life, the evidence before the Tribunal indicates the applicant has limited education, having studied only at a primary school level, and that he has no savings or financial assets. His work experience has been restricted to physical labour work associated with [job tasks] in Malaysia and [market] work and jobs helping people [do something] in Australia. He has no familiarity with the social structures, lifestyle, and social institutions in Kuala Lumpur and no kinship or community or family connections on which he can draw for support outside of Sarawak. The Tribunal finds in these circumstances, where the applicant has no personal connections, wealth, status, or support from family or social structures in Kuala Lumpur or any other urban environment in Malaysia, that he is at an increased risk of harm from the police, the State, and within the community in both rural and urban settings in Malaysia. Given this and placing weight on the degree to which the applicant wishes to live his life openly in the community in the context of his experiences in Australia, the Tribunal finds the risk of harm to the applicant as a homosexual man applies to all areas of Malaysia.
The Tribunal finds that the applicant is outside the country of his nationality, and owing to a well-founded fear of persecution, he is unable or unwilling to avail himself of the protection of that country. Therefore, the Tribunal finds that he meets the definition of refugee in s 5H(1) of the Act.
As the applicant meets the definition in s 5H(1), the Tribunal is satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant have a right to enter and reside in a third country?
On the evidence before it, the Tribunal finds s 36(3) does not apply. The applicant does not have a right to enter and reside in a third country.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside 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.
Dates of hearings: 12 June 2025 and 10 July 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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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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