2116523 (Refugee) - [2025] ARTA 1248

2116523 (REFUGEE) [2025] ARTA 1248 (16 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2116523
Tribunal:General Member D Hughes
Date:16 April 2025

Place:Melbourne
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa

Statement made on 16 April 2025 at 12:50pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual man – inconsistent evidence about relationship and no supporting evidence – opposition from families and social exclusion – limited activities in rural area and online in Australia – sexual orientation accepted – country information – same-sex acts criminalised but rarely prosecuted – less risk for Chinese Buddhists than for Malay Muslims, and more acceptance in major city, where applicant lived – some degree of official or societal discrimination but very remote risk of harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
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 9 November 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 June 2020. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criteria for grant of a protection visa.
The applicant appeared before the Tribunal on 29 October 2024 and 3 December 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.
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), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
This decision and statement of reasons is made by the Tribunal.
BACKGROUND
The applicant is a [Age] year old male from Malaysia. He arrived in Australia in June 2016. He applied for a protection visa in June 2020.
Evidence before the Department
In his application for a protection visa, the applicant claimed that he left Malaysia to come to Australia to have freedom as a gay man. He states that in Malaysia, they cannot accept gay or lesbian or homosexual people. He says he does not feel safe, and there is no freedom for the life he wants. Many people looked down on him because he is gay. He came to Australia for a better life.
The applicant indicated in the visa application form that he did not experience harm in Malaysia in the past, but he does state that he was mentally stressed and unhappy all the time. He claimed he could not relocate, as gay people are not accepted by the majority Muslim population. He does not have enough money to go anywhere else in Malaysia. It is the same everywhere, and it is safer for him to stay in the same place with his gay friends nearby. It is also difficult to find a job in some areas if they knew he was gay. He also claimed the authorities would never protect another race, as he is Malaysia Chinese and not ‘straight’.
The applicant also provided documentary evidence of his identity, citizenship and residence in [Location], Kuala Lumpur, Malaysia.
The applicant was not interviewed by the delegate. The delegate invited the applicant to provide further information about their claims under s 56 of the Act, but the applicant did not provide a response.
Given the lack of response, limited details and his delay in applying for a protection visa, the delegate was not satisfied the applicant’s claims were credible, and the delegate found the applicant did not satisfy the criteria for grant of a protection visa.
Evidence before the Tribunal
The applicant applied for review on 12 November 2021. Included with his review application was a copy of the delegate’s decision and notification.
To the extent relevant to this review, his evidence at the two hearings is discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant satisfies the protection criteria in s 36(2) of the Act for grant of a protection visa.. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant provided the Department with a copy of the biodata page from his Malaysian passport and Malaysian identity cards. I have no concerns with his identity, citizenship or residence in Malaysia. I am satisfied that the applicant is a citizen of Malaysia from [Location] in Kuala Lumpur.
There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that he has any right to enter and/or reside in any third country. Based on the information before me, I am satisfied s 36(3) of the Act does not apply. I am satisfied Malaysia is his receiving country and have assessed his claims against that country alone.
Claims related to sexuality
At the two hearings, the applicant provided an account of his sexuality and life in Malaysia.
At the first hearing, the applicant said he had previously been in a relationship but it ended when his partner’s family found out. In the second hearing, the applicant said he had been in a long relationship with a male, but they had broken up because they had different opinions and they had argued a lot after he came to Australia. He again said his former partner’s family were against the relationship.
The applicant did not provide supporting evidence of the relationship. At the second hearing, he said he was not able to provide any evidence of the relationship because many years had passed since it ended.
The applicant indicated he had not been in any other relationships with men either in Australia or Malaysia. He claimed there had been some ‘wishy washy’ things, but when asked to clarify what this meant, he indicated he had feelings towards others, but there was no relationship.
While the timeline and demise of his long term relationship was in some respects unclear, it was my impression that the applicant was recounting a lived experience. His evidence was freely given and I accept he was in a relationship as he claims. I accept the relationship failed for a few reasons, including pressure from his former partner’s family.
At the first hearing, the applicant indicated he had not been in any serious relationships with men in Australia. He explained that he was working in a rural area and has a small social circle. He also referred to language barriers. He said he has not used dating applications, because he feared being scammed. He said he had undertaken some internet searches, but he had not otherwise engaged in the gay community or actively sought a relationship.
Issues in Malaysia
In his protection visa application, the applicant indicated he had never been harmed because of his sexuality, but he had felt stressed and unhappy living in Malaysia.
At the hearing, the applicant said he had faced harm in the past because of his sexuality and relationship. He said his and his former partner’s families did not accept their relationship. He indicated he also faced discrimination and disapproval from family and friends. He said he did not want to talk with them about these issues, because he knew what he wanted, but with friends, family and work, it caused him a lot of pressure.
The applicant said his mother was against the relationship (and his sexuality), and his relatives said things that caused arguments – for example criticising why he would be with ‘boys’ and that it was ‘dirty’. His aunt would scold him for being with ‘boys’ and told him if he was not going to think about himself, he should at least think about his mother.
In terms of his former partner’s family, he claimed he and his former partner initially met in secret, but after his family found out they strongly opposed the relationship and there were many arguments. He explained that they tried not to meet with his partner’s family and that he was not able to visit his partner at his home. He confirmed his partner’s family never harmed him.
The applicant confirmed that he and his former partner both lived with their respective families. He confirmed they were never forced to leave their homes.
He claimed his friends in heterosexual relationships would invite them to casual get togethers, but they would not invite them to formal occasions. He said he and his partner felt pressure and left out because of this. He had other friends that he played sports with. They used to go out with him for meals, but after they found out about his sexuality, they looked down at him. They would ask him why he would do that and the distance between them grew.
The applicant confirmed his close friends continued to invite him out after they knew about his sexuality and relationship. He indicated that his close friends did so, but contact with other friends reduced when they found out about his relationship.
The Tribunal asked the applicant about his relationship with his mother. He indicated his relationship with his mother was good, but her sister (his aunt) would tell her to ‘correct his relationship’. His mother would scold him, but she loved him. He confirmed he lived with her until he left Malaysia.
In terms of work, in his initial visa application the applicant indicated that he was employed in [job task] for 16 years, but he claimed this was an error on the part of the person who completed his visa application. Asked if he ever had trouble finding work, the applicant initially indicated both yes and no. He said he sold [products], then worked alone, and then worked in [job task]. The applicant said that some people knew of his sexuality, but he did not discuss his sexuality with his colleagues and they were not sure about it.
Asked if he ever faced other issues in Malaysia, the applicant said they could not hold hands or do what other couples did. There were also areas in Malaysia were it would not be possible because of Malay (Muslim) attitudes to same sex relationships. When I put to him that he had not been harmed in Kuala Lumpur, he said it was because they did not reveal their relationship. He said it was still hard to be accepted even in Kuala Lumpur.
The applicant said that if he returns to Malaysia, his life would be meaningless. He left the country because of the pressure from the country and its religion (Islam). He said he cannot be public about his sexuality or his relationships.
Country information
The Tribunal has considered country information about the situation faced by gay men and other LGBTQIA+ persons in Malaysia.
In its most recent country report on Malaysia, the Australian Department of Foreign Affairs and Trade (DFAT) considers the threat of discrimination and violence faced by LGBTQIA+ persons in Malaysia. It indicates that LGBTQIA+ persons can face a high risk of official discrimination and a moderate risk of social discrimination. It highlights prosecution under the law, ‘re-education’ (conversion therapy), and exclusion from public spaces, accommodation and employment opportunities. In terms of violence, the report states that LGBTQIA+ people face a moderate risk of familial and/or societal violence.[1]
[1] DFAT, Country Information Report – Malaysia, 24 June 2024
DFAT states that the level and frequency of discrimination differs according to factors such as ‘sexual orientation and gender identity, socio-economic status, religion, geographic location, and degree of openness regarding their sexual orientation and gender identity’. DFAT refers to sources who state that people in the capital, Kuala Lumpur, are ‘generally more accepting’ of the LGBTQIA+ community compared against the more conservative East Coast peninsular Malaysia and Sabah/Sarawak.[2]
[2] DFAT, Country Information Report – Malaysia, 24 June 2024
The UK Home Office provides additional context and analysis, differentiating the risk assessment for certain LGBTQIA+ groups, particularly the more acute risks faced by the country’s trans community and persons with additional profile factors (e.g. Muslims).
As discussed with the applicant at the hearing, in relation to societal discrimination, the UK Home Office states that there is a negative view of same-sex relationships among Malaysians, and a strong social taboo in relation to ‘LGBTI’ issues among Muslims.[3] That was consistent with the applicant’s own views.
[3] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024
The UK Home Office assesses that in general, the official discrimination faced by ‘LGBI’ persons (i.e. lesbian, gay, bisexual and intersex, compared against trans persons) is not sufficiently serious by its nature and/or repetition to amount to serious harm. It indicates that persons who are likely able to demonstrate persecutory harm from state authorities are Muslim ‘LGBI’ persons (accused of same sex acts and at risk of prosecution under Syariah law); trans persons (particularly Muslims who are open about their gender identity); and those at risk of conversion therapy practices.[4]
[4] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024
The UK Home Office indicates that the situation in Kuala Lumpur is more favourable than other more conservative parts of Malaysia, suggesting that the capital is more tolerant of LGBTI persons, and it would be reasonable for a person to relocate there. The city also has better access to support services and community groups for LGBTI persons, in contrast to other states. It is reported to have an LGBTI community (involved in marches and rallies), and ‘LGBTI friendly areas’ such as nightclubs and bars.[5]
[5] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024
The advice about the situation in Kuala Lumpur is not unqualified. Concerts and LGBTQIA+ events in the city have been cancelled or raided in the past because of links to LGBTQIA+ issues, and the city’s oldest gay bar was raided in August 2018. Twenty men were detained and counselled for ‘illicit behaviour’, although the bar remains open. Groups protesting for LGBT rights in Kuala Lumpur have also been arrested.[6]
[6] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024; Hannah Ellis-Petersen, 'Malaysia accused of 'state-sponsored homophobia' after LGBT crackdown', The Guardian (Aust), 22 August 2018; AFP, 'Malaysian authorities raid LGBT Halloween party', New Straits Times, 30 October 2022; Max Walden, 'The 1975 sued for $3.76 million over 'gay kiss' that got Malaysia's Good Vibes Festival cancelled', ABC News, 1 August 2024; Freedom House, Freedom in the World 2024 - Malaysia, 3 April 2024
The UK Home Office indicates evidence of violence against trans persons in Malaysia, however it states there are few specific examples of societal violence against LGBI persons in the country. One report cited indicated no reports of violence against LGBI persons in KL, but examples were found in Perak. The report suggests the perpetrators of such violence are often family members. While no reports of violence against LGBI persons were indicated in Kuala Lumpur, the UK Home Office report also observes that it is difficult to ascertain the scale, frequency, and severity of any incidents against LGBI persons in the country in the absence of official statistics.[7]
[7] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024
The UK Home Office indicates that while same-sex acts are criminalised under the penal code in Malaysia, prosecutions are considered to be rare, and LGBI persons are unlikely to be at risk. In contrast, Muslim LGBI persons accused of same-sex acts would likely face prosecution under Syariah law (although it notes these laws do not apply to non-Muslims).[8]
[8] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024

The report also indicates barriers for LGBTI persons seeking protection from violence, and that the police sometimes perpetrate and condone violence against LGBTI persons, but information about the frequency and severity of incidents is again limited. The report further indicates evidence of the police prosecuting perpetrators of violence against the LGBTI community, although it notes that the police do not always categorise such harm as a hate crime.[9] A report from HRW also highlights these issues, particularly as it relates to violence against trans persons, and expresses concerns about official responses to incidents of violence against LGBTI persons.[10] More broadly, the advice does not obviously indicate that ethnic Chinese persons are denied police protection.[11]
[9] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024
[10] Thilaga Sulathireh, '“The Deceased Can’t Speak for Herself:” Violence Against LGBT People in Malaysia', Human Rights Watch, 25 June 2019
[11] DFAT, Country Information Report – Malaysia, 24 June 2024
Assessment
Based on his visa application and evidence at the two hearings, I accept the applicant is a gay man. I accept he has been in a same sex relationship in the past, and that he would seek a similar relationship in the future, whether he remains in Australia or if he returns to Malaysia.
At the second hearing, I discussed the country information about the situation for LGBTQIA+ persons in Malaysia. The applicant said his experience was different and more serious than described in the reports and that he was scared from what he heard. When I asked him to expand on those experiences, he referred to the evidence he had already provided. I am satisfied that there were no other matters to raise.
Having regard to his written and oral evidence, and the country information above, I accept the applicant has faced issues in Malaysia because of his sexuality. I accept he experienced some disapproval from his mother, but it is also clearly the case from his evidence that he and his mother are close, and that she loves and supports him. I note that he lived with her in Kuala Lumpur for the duration of his life in the country, and I consider he would seek to live with her again if he returned to Malaysia.
I accept he has faced disapproval, disparaging comments and criticism from other members of his wider family, including his aunt. I also accept he has faced isolation from some parts of his social circle. I accept he faced disapproval and rejection from some male friends, particularly in the sports context. I also accept his sexuality and relationship was a barrier to him attending some formal events with his friends. Equally, it was also clear from his evidence that he had some friends that were aware that he was gay, and were accepting (at least to some degree) of his sexuality and previous relationship.
On the information before me, I am satisfied that the applicant was consistently employed in Malaysia. While I accept he did not tell his colleagues about his sexuality or relationship, I also note it was his evidence that some members of the broader community knew he was gay, and at the first hearing he said that people can tell he is gay from his appearance. In that context, I consider his sexuality was not a barrier to him finding steady employment.
While I accept the applicant faced considerable stress and unhappiness because of familial and societal pressures, discrimination and intolerance related to his sexuality, and that this was harmful to him, it was also the case that he did not experience harm amounting to serious or significant harm for reasons of his sexuality. The absence of past harm is not determinative within these forward looking assessments, but it can be relevant, and it can be illustrative.
The applicant was never harmed or threatened with violence because of his sexuality or relationship. His family never threatened to make him undertake conversion therapy, and he never claimed to have been at threat of penalty under the law. He was not prevented from having a place to live. He was not prevented from travelling within the country (including with his former partner) or abroad. He was not prevented from working or making a living. And he was not prevented from socialising with family and friends.
Given the conservatism in the country, I accept he felt that he could not be fully open about his relationship or sexuality in Malaysia, because of societal attitudes (particularly from Malays and Muslims) and a fear of the consequences, but it is also the case that he was in a long term same sex relationship, and that he travelled and socialised with his former partner during his time in Malaysia. It was clearly the case that some of his family, friends and other people in his community knew about his sexuality and his relationship. In that context, I consider the absence of violence or threats to the applicant is an indication that he was not at risk within his community.
I again accept the applicant is a gay man, and that he wants to be in a same sex relationship. Based on his evidence at the hearing, I consider he is a private person, but he has also shared his sexuality and relationship with family and friends.
If the applicant returned to Malaysia, I consider he would likely return to live with his mother in Kuala Lumpur. I accept she does not approve of aspects of his sexuality, but I also find that she loves him and has supported him regardless of her own views about his sexuality. If he returned to his home, I accept he would continue to experience some limited disapproval of his sexuality and any future relationship, but his mother would not otherwise be a harmful force in his life. There is nothing to indicate she would seek to harm him or force him to undertake conversion therapy, as occurs in some families.
If he returned to Kuala Lumpur, I consider he would reconnect with family and friends that do support him. I accept there will be family and friends that do not, and that he may again encounter disapproval, disparaging comments, isolation, criticism, and societal discrimination from other people. I accept he may again feel that people look down on him. I again accept this would be stressful and difficult for the applicant.
The country advice indicates that gay men sometimes experience employment discrimination, particularly if they are HIV positive, however it does not indicate that gay men are denied employment opportunities altogether.[12] I accept there may be contexts where his sexuality is a barrier to him finding work, however I am satisfied he would be able to find work, as he has in the past, notwithstanding his concerns about his sexuality.
[12] DFAT, Country Information Report – Malaysia, 24 June 2024; UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024
I accept that he will be in another same sex relationship at some point. While I consider he is private about his sexuality and relationships, based on his evidence at the hearing, I also find that he would not conceal his relationship from family and friends, and that his community and colleagues would come to know about his sexuality in due course, if they do not already know. I consider that would extend to his wider community and local officials in Kuala Lumpur. I accept his evidence that he is identifiable as a gay man and I have assessed his claims on the basis that he would not modify or conceal his behaviour, beyond his personal desire to be private.
While I consider the applicant’s claims are consistent with the country advice, I do not consider the applicant shares the additional risk profiles of other LGBTQIA+ persons and groups identified in the reports before me. He is not trans and there is no reason to consider he would be imputed with any such profile. He is not Malay or Muslim, instead he is ethnic Chinese and his parents are Buddhist. Rather than indicating an additional risk factor as he suggests in his application, it appears he would be at lesser risk because of his ethnic and religious profile.
The applicant also does not live in a rural area, instead he lives in the populous and more tolerant capital city. He has not been threatened by any person or group with conversion therapy, and the country advice suggests he would not be at risk of violence or prosecution under the law.
When discussing these factors, the applicant stated that he was poor. The UK Home Office, citing a 2021 DFAT report, indicates that educated people from higher socioeconomic status are less likely to hide their sexuality from their families than ‘poorer individuals in rural areas’.[13] I accept the applicant may consider himself poor, but I do not accept he shares this additional profile, particularly given that he does not hide his sexuality from his family.
[13] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024
Within Kuala Lumpur, I give weight to the country advice above that indicates this is a more tolerant city. I consider that consistent with his own experiences. I also appreciate that the situation for LGBTQIA+ persons in the city is far from ideal, that he personally has faced instances of discrimination, and that the LGBTQIA+ community has faced interference and harassment from the authorities. However, I also consider the applicant is unlikely to engage with the more active aspects of the LGBTQIA+ community in the city (for example by attending gay clubs or participating in marches). I do not consider the applicant would be modifying his behaviour in this regard. Instead, based on his evidence at the hearing, I consider he is not interested in engaging with the LGBTQIA+ community in such a way.
I accept the applicant may face discrimination, but given his profile and individual circumstances, I do not consider it would be at a high level. I am not satisfied he would be denied employment, accommodation, or access to services he requires. I accept there are barriers in accessing police protection, but I also consider there are indications that the police do take action against perpetrators of violence against the LGBTQIA+ community. I also find below that he would not be at risk of such violence. I again accept that any societal or official discrimination he may face would be stressful and frustrating, but I am not satisfied it would be at a high level or that it would expose him to more serious or significant harm.
Given the applicant’s family and social circumstances, I do not consider there is any credible threat of violence to him, nor do I consider anyone from his family or social circle (or anyone else) would seek to put him in conversion therapy. Given the negative attitudes towards homosexuality in the country, I accept the chance or risk of violence is not zero, but given the advice about the situation in Kuala Lumpur, and his individual profile and circumstances, I consider the chance or risk of the applicant facing threat or violence is very remote. Further, having regard to country advice and his individual circumstances, I consider there is no real chance or risk of the applicant facing arrest or prosecution for reasons of his sexuality or any future relationship in Kuala Lumpur.
Having regard to the applicant’s circumstances, his individual profile, and the country information before me, I conclude as follows.
If the applicant were to return to live in Kuala Lumpur now or in the reasonably foreseeable future, I find there is not a real chance or real risk of the applicant facing familial or societal violence because of his sexuality or on any related basis. I also find there is no real chance or risk of the applicant being forced to undergo conversion therapy.
If the applicant were to return to live in Kuala Lumpur now or in the reasonably foreseeable future, I accept he would face some degree of societal and official discrimination because of his sexuality. However, having regard to his individual circumstances, and the country information above, I am not satisfied it would constitute serious harm or significant harm, including when considered in a cumulative sense.
While I accept it would be stressful, frustrating, cause him pressure and have a negative impact on the quality of his life and happiness in Malaysia, in all the circumstances, I am not satisfied there would be a threat to the applicant’s life or liberty, or that he would experience physical harassment or ill treatment. While I accept he may face some degree of official or societal discrimination, I am not satisfied it would be at a level where he would face significant economic hardship, that he would be denied access to basic services, that he would be denied a capacity to learn a livelihood, that it would threaten his capacity to subsist, or that it would otherwise constitute serious harm.
Having regard to the assessment above, I also do not consider there is a real risk of the applicant being arbitrarily deprived of his life, that he would face torture or be sentenced to death. While I accept that the treatment he may experience could be considered cruel or degrading, I am not satisfied there is a real risk that it would involve severe pain or suffering, or pain or suffering that could be regarded as cruel or inhuman in nature, or that it is intended to cause extreme humiliation, or that it would otherwise constitute significant harm as defined.
I accept the situation in Australia is far more favourable for the applicant and that he wishes to remain here. I again accept he would feel stress and pressure as a gay man living in Kuala Lumpur. I am conscious of the impact of a return to the country for the applicant. However, as indicated to the applicant at the hearings, the question before the Tribunal is whether the applicant would face a real chance of serious harm, or a real risk of significant harm, for these reasons.
Having regard to everything before the Tribunal, I find that there is not a real chance of the applicant facing serious harm for reasons of his sexuality, any same sex relationship, or on any related basis, if he were to return to Malaysia, now or in the reasonably foreseeable future. I also find there is not a real risk of the applicant facing significant harm for these reasons, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia.
Conclusion
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). In view of the assessment above, 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 claim or 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. The applicant also does not satisfy s 36(2)(b) or (c). Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearings:                 29 October 2024 and 3 December 2024
Representative:                    n/a
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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