2108785 (Refugee)
[2021] AATA 5625
•29 September 2021
2108785 (Refugee) [2021] AATA 5625 (29 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2108785
COUNTRY OF REFERENCE: Malaysia
MEMBER:Joseph Lindsay
DATE:29 September 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 29 September 2021 at 3:53pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual – maintained straight marriage as a cover – threatened and insulted – beaten by the family of ex-wife – religion – Christian – vague and inconsistent evidence – credibility issues – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 46, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 July 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 18 December 2020. The applicant participated in a video hearing with the Tribunal on 30 August 2021 and 20 September 2021. The applicant was assisted by an interpreter in the Chinese (Mandarin) and English languages. There was one witness, [Mr A], who provided evidence to the Tribunal.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s responses to his written claims for protection are as follows:
Is the applicant making their own claims for protection?
A: Yes
Select the country or countries from which this applicant is seeking protection and cannot return to.
MALAYSIA
Provide reasons why this applicant left that country or those countries:
A: after so many years of marriage, i cant stand with a life that myself is gay to use a straight person marriage to cover myself. I living stress every day.. until my exwife found out some ten years later and reveal it out..
Did this applicant experience harm in that country or those countries?
A: Yes
Give details including:
• the type of harm this applicant experienced
• the person/people responsible for the harm
• why they harmed this applicant.
A: yes i was beaten by my exwife family and relatives, and i was called whatever name that linked to satanic and animals...
Did this applicant seek help within the country or those countries after the harm?
A: Yes
Give details including:
• the name of the person/organisation/authorities this applicant asked for help
• what help they provided, if they helped
A: yes i try to seek help to ask from my friend a money to help to leave the country
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
A: No
Give details for why this applicant did not try to move to another part of the country or those countries.
A: there is no way, if my exwife report a police, i will be easily traced, and police in malaysia will also catching an lgbt person like me
Explain what the applicant thinks will happen to them if they return to that country or those countries:
A: i will continue to suffers as a gay that will be see as animal or a physho person in malaysian, as malaysian is a muslim country thought that gay is came from hobby or interest,
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
A: Yes
Give details including:
• the type of harm or mistreatment this applicant is likely to experience
• the person/people who would be responsible for the harm or mistreatment
• why they would harm or mistreat this applicant.
A: yes every lgbt person will receive almost dead threats.... and people will easily torture you for fun
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
A: No
Give details about why this applicant thinks the authorities could not, or would not, protect them.
A: there is no law in malaysia will help or protect an lgbt person, they will simply send people like me in bars and continue to torture
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
A: No
Give details about why this applicant is unable to relocate.
A: no, we will be simply found by our easy id numbers
In the hearing, the Tribunal discussed the applicant’s claims with the applicant. The Tribunal also spoke to the applicant about the information contained in the delegate’s decision dated 6 July 2021. The Tribunal accepts that the applicant provided a copy of the delegate’s decision to the Tribunal.
In the hearing, the applicant maintained that he is gay, and he maintained that the following claims were correct:
- he was in a straight marriage to “cover” himself.
-his ex-wife found out some 10 years after he got married and his true identity as a gay man was revealed.
- he was beaten by the family of his ex-wife.
- he was accused of being satanic and being an animal.
The Tribunal notes that in the interview with the delegate, the applicant claimed that:
- his wife confronted him in 2016 about him having a boyfriend.
- he admitted to his wife that he was gay but he did not know how she found out.
- his wife found someone that was going to beat him up.
- his wife reported him to an Islamic group so he decided to run away.
-he went to live with his mother in March/April 2016 but he moved to Kuala Lumpur after one month, but his mother had nagged him continuously and hated his sexual orientation.
-he left Kuala Lumpur after living there for 4-5 months because he was facing further ostracising and he had suffered a lot of discrimination.
-the discrimination/ostracising he had suffered happened because his wife spread word to the entire district that he was gay and then people pointed fingers, made comments and discriminated against him.
-he met his third boyfriend in 2015 when he was [doing some work] for the man, whose name is [Mr B].
-his wife followed him to a hotel during one of his dates with [Mr B] and she caught them both in the middle of a sexual act.
-in June or July 2016, his ex-wife’s brother started telling Islamic groups, like Islam Plus, about the applicant’s sexual orientation, and then people from that group tried to catch him so he went into hiding.
- when his wife found out where he was staying, he had to leave that place.
The Tribunal spoke to the witness, [Mr A], born [date]. In the hearing, [Mr A] said:
- he had known the applicant from when they were both in Malaysia.
- they were both work colleagues.
- he had known the applicant for 20 years and he knows him well.
- he was in an intimate gay relationship with the applicant for three years when he was in Malaysia, and that this intimate gay relationship with the applicant continued with him for five years while they were both together in Australia, from 2016 to 2021.
- he told the applicant to come to Perth in 2015.
- he himself has gone back to Malaysia.
- he witnessed the applicant being harmed in Malaysia in 2001 when he saw him run away from his house, and when he asked him what was going on the applicant told him “they” were going to harm him.
- he saw “some guys” chasing the applicant, then the applicant got into his car and they both drove away.
- the applicant told him that his wife knew he was gay twenty years ago.
- he did not see any further incidents happen in the approximately 15 more years the applicant was in Malaysia.
However, in subsequent questioning from the Tribunal, [Mr A] admitted that he did not know the applicant before the time they were both in the detention centre together, and he admitted that his student visa had been cancelled and he had been removed from Australia to Malaysia. When the Tribunal put to [Mr A] that it may find his evidence not to be credible, he had no response.
The Tribunal then spoke to the applicant. When the Tribunal asked the applicant how he knew [Mr A], he said that he knew him when he was in Malaysia, and he had known him for more than ten years. The applicant said he knew [Mr A] through work and that they had a lot of contact. The applicant said that it was [Mr A] who had invited him to come to Australia. When the Tribunal asked the applicant how he would describe his relationship to [Mr A], the applicant said that he and [Mr A] were “good friends” and had known each other in Australia.
The applicant then said that he had known [Mr A] in Kuala Lumpur, and that he had known [Mr A] for more than ten years. When asked if he had met [Mr A] for the first time when they were both in detention together, the applicant said “no.” However, the applicant then admitted that he and [Mr A] had spent time in the detention centre together. The applicant said that he actually had been surprised to see [Mr A] in the detention centre because he had not seen him in a long time. When asked when he had last seen [Mr A], the applicant said “more than two years ago, before his last hearing.” When asked what he meant when he said “his last hearing,” the applicant said that about two or three years ago [Mr A] had broken the law and had been sent to gaol for “threatening people’s safety or something like that.” When asked if he was saying that [Mr A] had been sent to gaol for committing a crime, the applicant said “yes.”
When the applicant was asked if he had lived with [Mr A], he responded that he had lived with [Mr A] from the time he first got to Australia for about two or three months and then they went their separate ways and the applicant rented a place of his own. The applicant then said he did not live with [Mr A] for the rest of the time that both he and [Mr A] were in Australia together.
When the Tribunal asked the applicant if he had ever been in an intimate relationship with [Mr A], he said “no.” When the Tribunal asked the applicant if he had ever been in an intimate relationship with anyone whilst he had been in Australia, he said “no.” When the Tribunal asked the applicant if he had ever had sex with [Mr A], the applicant said “no, no no.” The applicant then said that he would never have sex with [Mr A] because [Mr A] is not gay.
The Tribunal then spoke to the applicant about his background. The applicant said that he is ethnic Chinese. He said he was born in Malaysia in [year] in Perak. He said he grew up in Perak, and then he went to Kuala Lumpur. He said he completed schooling up to year 9, and then went to work as a [Occupation 1]. He said that working as a [Occupation 1] was the only work he did in Malaysia before coming to Australia. He said that he had been married but that he was divorced. Then the applicant said he was not officially divorced, but that he had separated from his wife. He then said he was not sure if he was divorced or not. He said that he had two sons, and that one son was now [age] years old and the other son was [age] years old. He said that the eldest son is in Malaysia and the younger son is living in Australia on a student visa. He said that he was actually living with his younger son before he went into detention.
The Tribunal then spoke to the applicant about his claims. When asked when he was harmed in Malaysia, the applicant initially said that he was harmed in either 2014 or 2015. When further questioned about when he was harmed in Malaysia, the applicant responded that he was harmed in December 2014.
When asked how many incidents of harm occurred, the applicant responded that there were many incidents of harm, and that the incidents started in 2014. He said that he ran away to different places and all different people hurt him all the time. The applicant said that a few months after he went to the different places, “they” would find him again and “they” would slap and abuse him. The applicant said that not much could be done if he reported the incidents to the police because his ex-wife’s brother had a lot of networking with the police.
The Tribunal then asked the applicant to give further details about what happened to him at the end of 2014. In response, the applicant said that it was in the latter part of 2014 that he and his boyfriend, [Mr B], went on a holiday. The applicant said he did not know how his ex-wife found out, but that his ex-wife had her suspicions about the applicant’s sexuality, but that she had followed him and found out, and then they started fighting.
The Tribunal asked the applicant about his boyfriend, [Mr B]. In response, the applicant said he had known [Mr B] for more than two years. The applicant again confirmed that his ex-wife found about him being gay when he went on a holiday with [Mr B] at the end of 2014. The applicant said that when his wife found out he was gay, they started fighting, and then his ex-wife’s brother came and beat him up.
The applicant said that he left the family home at the end of 2014, but that before he left his home, his ex-wife’s brother came and beat him up. The applicant claimed that his ex-wife’s brother beat him with his fists and also kicked him. The applicant then claimed that this incident happened in the family home with other family members present, including his mother and his uncles. The applicant indicated that it actually had been a getting together of family members to talk about the issue of the applicant being gay. The applicant said that he then left the family home at the end of 2014.
When the Tribunal asked the applicant if he ever went to the police for help, he said “not the first time.” The applicant then said that he did go to the police after he had been harassed and abused “two to three times later.” However, the applicant then indicated that the police did not help him and that he stayed in Malaysia until the time he left Malaysia to come to Australia at the end of 2016. He said that during the approximately two-year period after he left the family home but stayed in Malaysia, he just kept moving around. He claimed that he moved at least three times to different locations in Malaysia between the latter part of 2014 and the latter part of 2016. However, he then said that most of the time he stayed in the Kuala Lumpur area.
The applicant then said that for that two-year period, people were constantly harassing him. He gave an example where if he was having tea or coffee, two or three people would openly laugh at him, saying he was gay and revealing this to everyone around.
When the Tribunal asked the applicant who these people were who were harassing him, he responded that they were people hired by his ex-wife’s brother. The applicant then indicated that he was not exactly sure that they were people hired by his ex-wife’s brother, but that was his suspicion. He said that during the two-year period, he was not able to hold a job and did not work much because he had to move around.
When the Tribunal asked the applicant when he went to the police, he responded that he went to the police in 2015, sometime around six months after the incident where he was beaten by his ex-wife’s brother at the end of 2014.
When the Tribunal asked the applicant about his relationship with [Mr B], the applicant said he lost contact with [Mr B].
When asked if the incident in the latter part of 2014 was the only incident anyone ever hit him, he said “yes.” Then he said that he was hit in an incident at the beginning of 2015, but later just had threats and insults.
The Tribunal put its preliminary concerns to the applicant that he may not have given the Tribunal credible information about his claims for protection.
The Tribunal put to the applicant that in his interview with the delegate, the applicant had claimed that the incident in which his ex-wife had confronted him about being gay was in 2016, but that he had told the Tribunal that the incident had occurred in the latter part of 2014. The Tribunal put to the applicant that the Tribunal may, subject to his response, find that the applicant had not given consistent information about this claim and may find that his claim in this respect was not credible. In response, the applicant said that when the delegate interviewed him, he did say these things happened before arriving in Australia at the end of 2016. The applicant then said that the delegate had made a mistake where he got married at the age of 27 years and not at the age of 17 years. The applicant then said he did not “come out” as being gay to his ex-wife in 2016, and that the delegate had got this wrong.
After an adjournment, the Tribunal put to the applicant that the Tribunal held other preliminary concerns that he had not provided credible information to the Tribunal. The applicant said that [Mr A] did not help him prepare his protection application, but someone else did. The applicant then admitted that the protection application indicated it was prepared by a “self-registered user” who completed the form on 18 December 2020. The applicant then said he did not speak English, and that was why he got a friend to help him. However, when the Tribunal asked the applicant whether the information in his protection application was true, correct and up to date in every detail, he said “yes.”
The applicant again confirmed that he had left the family home at the end of 2014, and that he had moved around Malaysia and lived in several locations before he left Malaysia at the end of 2016.
The Tribunal then put to the applicant that the Tribunal may find he had given inconsistent information about where he had lived in Malaysia, where he claimed in the hearing that he had left the family home at the end of 2014 and had moved around several times between the end of 2014 and the end of 2016 when he was in Malaysia, but in his protection application he had claimed that he had only lived at two residential addresses while he was in Malaysia, those addresses being [Address 1] from 1 December 1999 to 30 December 2010, and [Address 2] from 1 January 2011 to 20 December 2016. The Tribunal put to the applicant that it may find that the applicant had not given credible information about where he had lived in Malaysia. In response, the applicant said that he moved between four and five times. Then he said he moved to so many places that he can’t remember the addresses sometimes.
The Tribunal then put to the applicant that the Tribunal may find he had given inconsistent information about his work history in Malaysia, where he claimed in the hearing that he had worked in Malaysia as a [Occupation 1], but then not worked much between the end of 2014 and the end of 2016, but then in his protection application he had claimed that he had never been employed at all. In response, the applicant said that at first he was working, but then later he was not working. The applicant then said he had a business [as an Occupation 1], and that it was his own business. The applicant said he had his business for about ten years. The Tribunal put to the applicant that it may find he had not given credible information about his employment history in Malaysia, where in his response to the question in his written protection application about how he supported himself he said “family business provide me as share holder” and in response to the question about what financial support he had he had written “monthly allowance.” In response, the applicant said the business was actually a family business that included his older brother. He said the business was [in Occupation 1]. The applicant then said he had an older brother and two younger sisters in Malaysia. However, the Tribunal put to the applicant that in response to the question “does the applicant have any relatives who they are in contact and travelled with or who they are in contact with and reside in Australia” he said “No.” The Tribunal put to the applicant that it may find that he had not provided credible information about his family members. In response, the applicant said that his friend made a mistake when he filled out the form.
The Tribunal then asked the applicant why he called [Mr A] to give evidence to the Tribunal. In response, the applicant said that [Mr A] knew about his sexuality and [Mr A] knew that the applicant was gay. The applicant said that he had known [Mr A] from when they were both in Malaysia. The applicant said that [Mr A] was the one who had invited him to come to Australia, but that after he came to Australia. The applicant said that he did not see [Mr A] for years, but then later on they would “hang out” together. The applicant said that he trusts [Mr A] “a lot.”
The Tribunal then put to the applicant its preliminary concerns about the credibility of [Mr A]’s evidence in accordance with section 424AA of the Act. The Tribunal put to the applicant that [Mr A] said:
- he had known the applicant from when they were both in Malaysia.
- they were both work colleagues.
- he had known the applicant for 20 years and he knows him well.
- he was in an intimate gay relationship with the applicant for three years when he was in Malaysia, and that this intimate gay relationship with the applicant continued with him for five years while they were both together in Australia, from 2016 to 2021.
- he told the applicant to come to Perth in 2015.
- he himself has gone back to Malaysia.
- he witnessed the applicant being harmed in Malaysia in 2001 when he saw him run away from his house, and when he asked him what was going on the applicant told him “they” were going to harm him.
- he saw “some guys” chasing the applicant, then the applicant got into his car and they both drove away.
- the applicant told him that his wife knew he was gay twenty years ago.
- he did not see any further incidents happen in the approximately 15 more years the applicant was in Malaysia.
The Tribunal put to the applicant that [Mr A]’s testimony to the Tribunal appeared to be inconsistent with the applicant’s evidence to the Tribunal, where:
-the applicant said [Mr A] was not gay and that he had never had sex with [Mr A].
-the applicant said he did not live with [Mr A] for most of the period from 2016 to 2021.
The Tribunal put to the applicant that based on this inconsistent evidence, the Tribunal may not accept the applicant’s claim that he is gay.
The applicant said he did not want an adjournment or additional time to respond, and he wanted to respond immediately to the Tribunal. In response, the applicant said that he had known [Mr A] in Malaysia but that he had never had any sexual relations with him. The applicant said he had no idea why [Mr A] spoke about an incident from 20 years ago, because the incident happened in 2014. The applicant said that [Mr A] invited him to come to Australia, and that he stayed with [Mr A] for about three months before moving out. The applicant said he did not see [Mr A] for some time but then saw him again at the detention centre.
The Tribunal then put to the applicant that it appeared that he had given inconsistent information about whether he had moved to another part of Malaysia to seek safety, where in the hearing the applicant said he had moved several times but in his written protection application in response to the question “did this applicant move, or try to move, to another part of that country or those countries to seek safety?” the applicant wrote “no” and that when asked to give details about why he did not move, he wrote “there is no way, if my exwife report a police, i will be easily traced, and police in malaysia will also catching an lgbt person like me.” The Tribunal put to the applicant that it may find that he had not provided credible information about his claims about moving to another part of Malaysia to see safety. In response, the applicant said that he told his friend that he had moved to different places and he did not know why his friend had written something different.
The Tribunal then put to the applicant that it appeared that he had given inconsistent information about whether he had sought help from the Malaysian police when he was in Malaysia, where in the hearing the applicant said he had gone to the police but in the written application he indicated that he had not made a report to the police. In response the applicant said that it was his ex-wife that made a report to the police and that because the police are Muslims they are against gays. He then said that his ex-wife’s brother went to “Muslim people” to get them to harm the applicant “privately.” The applicant then said he did make a report to the police but he indicated that the police did not help him because his ex-wife’s brother is a friend of the police as well as the “gangsters.”
The Tribunal put to the applicant that he had mentioned in his written protection application that he is a Christian. The Tribunal asked the applicant if he was raising any claims in respect to being a Christian and in response he indicated he did want to raise a claim. The Tribunal spoke to the applicant about the DFAT Country Information Report for Malaysia dated 29 June 2021, and referred to paragraph 3.58 that states:
DFAT assesses that Christians generally live free from societal discrimination on a day-to-day basis. They are usually able to worship freely without significant official interference. Those proselytising or promoting Christianity to Muslims face a moderate risk of harassment by state authorities that, in some cases, has included violence or abduction.
The Tribunal put to the applicant that it may find that, based on the country information, the applicant faced a low risk of harm in Malaysia purely on the basis of his Christian identity. In response, the applicant said that “for sure” he was going to get harmed because in Malaysia Christian people don’t have same power as Islamic people.
The Tribunal also put to the applicant that he had been in Australia unlawfully for about three years. The Tribunal noted that the applicant had lodged an application for protection just over two months after his arrival in Australia but that he had failed to provide his biometric information to the Department and the application was invalidated under s46(2A) of the Act. The Tribunal put to the applicant that he had made no attempt to regularise his immigration status during that period or carry out research or even make enquiries to ascertain how he could apply to remain in Australia lawfully. The Tribunal also put to the applicant that he had lodged this second protection visa application only after he was placed in immigration detention four years after he arrived in Australia. The Tribunal put to the applicant that, based on this information, the Tribunal may find that the applicant’s claims for protection are not credible. In response, the applicant agreed that he had stayed in Australia unlawfully for about three years.
Findings
The Tribunal has carefully considered the information made available to the Tribunal as indicated above and has made the following findings.
The Tribunal does not accept that the applicant gave credible information to the Tribunal about any of his protection claims, whether they be the written claims or the oral claims made at the hearing. The Tribunal finds the applicant’s evidence at the hearing in respect to his claim of being gay, or any alleged incident of harm or harassment in respect to being gay was vague, evasive, lacked detail, was inconsistent and embellished. The Tribunal does not accept the applicant’s claim that he is gay.
The Tribunal does not accept that the witness, [Mr A], gave credible evidence to the Tribunal about what allegedly happened to the applicant whilst he was in Malaysia in respect to any alleged incident of harm due to being gay or any other matter.
The Tribunal is not persuaded by the applicant’s responses when the Tribunal put to him that the Tribunal may find he had not given credible information about his residential history, or his work history, or his claims of harm or harassment when he was in Malaysia, or in respect to whether he went to the police for help, or in respect to whether he moved around Malaysia to seek safety. In particular, the Tribunal does not accept the applicant’s claims that:
- he was in a straight marriage to “cover” himself.
-his ex-wife found out some 10 years after he got married and his true identity as a gay man was revealed.
- he was beaten by the family of his ex-wife.
- he was accused of being satanic and being an animal.
- his wife confronted him in 2016 about him having a boyfriend.
- he admitted to his wife that he was gay but he did not know how she found out.
- his wife found someone that was going to beat him up.
- his wife reported him to an Islamic group so he decided to run away.
-he went to live with his mother in March/April 2016 but he moved to Kuala Lumpur after one month, but his mother had nagged him continuously and hated his sexual orientation.
-he left Kuala Lumpur after living there for 4-5 months because he was facing further ostracising and he had suffered a lot of discrimination.
-the discrimination/ostracising he had suffered happened because his wife spread word to the entire district that he was gay and then people pointed fingers, made comments and discriminated against him.
-he met his third boyfriend in 2015 when he was [doing work] for the man, whose name is [Mr B].
-his wife followed him to a hotel during one of his dates with [Mr B] and she caught them both in the middle of a sexual act.
-in June or July 2016, his ex-wife’s brother started telling Islamic groups, like Islam Plus, about the applicant’s sexual orientation, and then people from that group tried to catch him so he went into hiding.
- when his wife found out where he was staying, he had to leave that place.
The Tribunal does not accept that the applicant’s ex-wife reported him to the Malaysia police, or that his ex-wife’s brother went to “Muslim people” to get them to harm the applicant “privately.” The Tribunal does not accept that the applicant’s wife’s brother is a friend of the police as well as the “gangsters.”
The Tribunal does not accept that the applicant faces either a real chance of serious harm or a real risk of significant harm based on his Christian religion should he return to Malaysia in the foreseeable future.
The Tribunal accepts that the applicant has been in Australia unlawfully for about three years. The Tribunal accepts that the applicant had made no attempt to regularise his immigration status during that period or carry out research or even make enquiries to ascertain how he could apply to remain in Australia lawfully. The Tribunal accepts that the applicant lodged this second protection visa application only after he was placed in immigration detention four years after he arrived in Australia. The Tribunal accepts that none of the applicant’s claims for protection are credible.
In balancing the above findings and considerations, the Tribunal does not accept that the applicant would face a real chance of serious harm or a real risk of significant harm if he returned to Malaysia in the foreseeable future. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay
Member
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 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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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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Appeal
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