2116524 (Refugee) - [2025] ARTA 1135

2116524 (REFUGEE) [2025] ARTA 1135 (21 FEBRUARY 2025)
12DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2116524
Tribunal:General Member D Hughes
Date:21 February 2025

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(aa) of the Migration Act.

Statement made on 21 February 2025 at 2:52pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual woman –stigmatised and threatened by family, friends and community – mental health and self-harm – private and reserved, with limited experiences and claims, but credible, persuasive and consistent with country information – brief relationship with man not contraindicative – relocation to major city would reduce chance of harm – complementary protection – reasonableness of relocation – discrimination in accommodation and employment and lack of support networks – limited state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (2B), (3), 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 criterion for grant of a protection visa.
The applicant appeared before the Tribunal on 29 October 2024 to give evidence and present arguments. The Tribunal hearing was 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 national of Malaysia. She arrived in Australia [in] March 2018 as a visitor. She applied for a protection visa on 15 June 2020.
Evidence before the Department
The applicant’s protection visa application included copies of her identity documentation (passport, national identity card, and Malaysian driving licence) and details about her background and protection claims.
The applicant claims to be owed protection on the basis of her sexuality. She claims that she is a lesbian and her country does not accept lesbian and gay people.
The delegate did not interview the applicant. In the course of its consideration of her application, the delegate requested further information from the applicant in writing, however the applicant did not respond to that request.
In refusing the application, the delegate was not satisfied that the applicant’s claims were genuine, and it was not satisfied that she was owed protection under s 36(2)(a) or (aa).
Evidence before the Tribunal
The applicant lodged her review application on 12 November 2021. In addition to her application for review, the applicant provided a copy of the delegate’s decision dated 9 November 2021.
The applicant appeared at a hearing before the Tribunal on 29 October 2024 to give evidence and present arguments. To the extent relevant to this review, the applicant’s evidence at the hearing is referred to 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 meets the criteria for grant of a protection visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Identity
The applicant provided the Department with a copy of her Malaysian passport in addition to other supporting identity documentation. I am satisfied that the applicant is a national of Malaysia.
There is nothing before me to suggest the applicant has citizenship of any other country, or that she 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 that Malaysia is her receiving country and I have assessed her claims against that country.
Background
The applicant is from [Location] in the state of Melaka. She claims to have only lived in that area. That is consistent with her identity documentation.
The applicant completed high school in this area. She then worked in odd jobs in Malaysia – as [job tasks 1-3]. In Australia, she has worked in [job tasks 4 and 5].
The applicant claims to have faced significant familial and societal pressure and stress because of her sexuality. She claimed that she was always looked at in a strange way. People gossiped about her and she felt at threat. She could not stand life there and many times she wanted to self-harm or end her life.
She had decided to come to Australia because of her family and community.
Her mother was against her relationships. She had been in a relationship with a Malay girl that she met at school. Her girlfriend had also faced pressure from her own family. She confirmed that the relationship with this person was romantic and intimate. Their family and the community could not tolerate their relationship. The relationship ended, and she was no longer allowed to contact her girlfriend.
The applicant gave evidence at the hearing that she had previously tried to date a man. In 2019, she met a man in Australia, but she did not think they were compatible. He had given her assistance, but the relationship ended six months later.
She has not been in any other relationships. She explained that she does not like being with men. She has not been in any further relationships with women, as she does not know whether other women are attracted to her. She said she would prefer to be with another Asian woman, but she does not know whether they would accept her. She is not open with her friends about her sexuality as she is worried her friends will no longer like her.
Asked why she chose to come to Australia if she was not able to seek a relationship here, she said she was sad and wanted to go somewhere, and her friend told her about Australia.
She had not been physically harmed in Malaysia, but was threatened by her family, friends and community and stigmatised. They rejected her, looked at her differently, and were hurtful and harmful towards her. She claimed she had an emotional breakdown.
If she returned to Malaysia, she believes she would be at threat from her friends and relatives. She fears they would despise her and attack her online. She did not fear the government or religious authorities (she is not Muslim), however she believed her sexuality would have a big impact in terms of finding work and being accepted in Malaysia. She said people would stigmatise her and talk about her behind her back, and this would prevent her from working and finding a place to live. She also feared other people in Malaysia if they found out about her sexuality. She was concerned about the impact on her mental health.
She claimed she could not travel to another area, such as Kuala Lumpur, because she has family there and she would face discrimination. Even though she has concerns with her family, she could not survive in another part of Malaysia without them. If she commenced another relationship with a woman in Malaysia, she would face vitriol and online attacks from her family and friends.
Assessment of sexuality claims
The applicant’s past claims and experiences in relation to her sexuality are in some respects limited. She had a single relationship with a young woman that she met in school. She has not since had a relationship with a woman, and in fact the only relationship she had in Australia was with a man.
While her experiences were limited, I found her evidence of her sexuality, and the impact of her sexuality on her personal life, to be credible and persuasive. I was left with no uncertainty about the emotional impact of the breakdown of her past relationship, her struggles with her sexuality, her isolation, and the discrimination, threat and stigma she faced from her family, friends and community because of her sexuality.
I did not consider her short relationship with a man in Australia was contradictive of her claims related to her sexuality. If anything, I consider her attempt to have a heteronormative relationship with her male friend, and her explanation for why it failed, consistent with her struggles in terms of her sexuality. She freely volunteered the information at the hearing and in no way sought to conceal or downplay its significance. She was clear in her evidence that she had not tried to meet men after the relationship ended explaining that she did not like being with men. In contrast, her barriers to meeting women were her fear that she would not be liked or accepted.
I invited the applicant to provide evidence of her past relationship after the hearing, but she did not do so. She had indicated that she believed she no longer had evidence of their relationship, only of her scars from self-harm. Ultimately, I considered her evidence at the hearing was credible and clearly demonstrated her sexuality and I accept she was in a relationship as she claimed.
I accept the applicant is a lesbian, and that if she returned to Malaysia, she would desire to be in a relationship with a woman. I accept she is a private person, but I also consider that is in part because of her fears related to her sexuality, her vulnerability, and her past experiences.
I also found her evidence of the harm she faced from her family, friends and community to be persuasive, consistent with country information, and free from embellishment. I accept the applicant faced discrimination, threat, isolation, and stigma from her family and local community. I accept she was unable to live independently and was reliant on her family, and she was denied her relationship, and threatened about her sexual identity. I also accept the applicant has at times self-harmed because of the pressure she faced in Malaysia. I accept the toll of that mistreatment was the catalyst for her decision to come to Australia.
A key consideration in this assessment is the applicant’s personal circumstances and mental health. I consider her evidence demonstrated that she is a vulnerable person, clearly impacted by her past experiences and that she struggles with her sexuality and mental health. I have weighed that in this assessment.
Does the applicant satisfy the refugee criterion for protection?
If the applicant were to return to Melaka, I am satisfied her family and community would continue to be aware of her sexuality and target her for mistreatment. While it is not clear from her evidence that she would face violence, I do accept she would continue to face discrimination, isolation and stigma, and that she would feel at threat, as she had in the past. I accept she would be forced to live with her family and prevented from being in relationships with women, and denied her sexuality. I also accept her concerns about being targeted online by friends or other people because of her sexuality. I consider those concerns are consistent with country advice before me about the treatment of LGBTQIA+ persons in Malaysia. I also consider the applicant’s mental health and emotional vulnerability compound the impact of the treatment she would face.
The Australian Department of Foreign Affairs and Trade (DFAT) assesses that LGBTQIA+ persons in Malaysia face a high risk of official discrimination and a moderate risk of social discrimination. It refers to prosecution under the law, ‘re-education’ (conversion therapy), and exclusion from public spaces, accommodation and employment opportunities. DGAT also assesses that LGBTQIA+ people face a moderate risk of familial and/or societal violence.[1]
[1] DFAT, Country Information Report – Malaysia, 24 June 2024
That assessment is qualified to some extent. DFAT highlights 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 quotes sources as saying that people in 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
DFAT also states that lesbians and queer women are much less visible in Malaysia compared with other members of the LGBTQIA+ community.[3]
[3] DFAT, Country Information Report – Malaysia, 24 June 2024; see for example NBC (Associated Press), 'Malaysian Muslim lesbian couple caned in public punishment', NBC News (website), 4 September 2018
The UK Home Office provides further analysis, differentiating the risk assessment for groups within the LGBTQIA+ community, particularly the more acute risks faced by the country’s trans community and persons with additional profiles (e.g. Muslims).
In terms of societal discrimination, the UK Home Office acknowledges there is a negative view of same-sex relationships among Malaysians, and a strong social taboo in relation to ‘LGBTI’ issues among Muslims. The report states that in general, the official discrimination faced by ‘LGBI’ persons (i.e. lesbian, gay, bisexual and intersex, but not trans persons) is not sufficiently serious by its nature and/or repetition to amount to serious harm. It opines 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 Sharia 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. Note: references to this report use the acronyms relied on by the UK Home Office, which vary throughout the report itself.
In terms of her specific profile, I have had regard to the fact that the applicant is ethnically Chinese. She is not a Muslim and there is no reason to consider she is at risk under Syariah law, even indirectly. I consider she does not possess these higher risk profiles.
The applicant is a private and reserved person, including in terms of her sexuality. Even within the context of Australia, where there is more freedom in terms of her sexuality, the applicant has not actively sought relationships with other women, nor has she told friends about her sexuality. I am very conscious of her explanations in this regard – which I accept – but I also consider it some insight into how she would engage in terms of her sexuality on return to Malaysia.
I consider her sexual profile as a lesbian is genuine, but private. However, she is also a vulnerable person that is known to be a lesbian in her community, and I accept she has faced discrimination, threat and stigma from her family, friends and community in the past.
I have considered the situation for the applicant on return to Melaka. The applicant’s parents have passed away, but she has provided clear advice about the issues she faced with her broader family in Melaka, as well as her social circle and broader community. I accept those issues would persist if she was to return to Melaka in the reasonably foreseeable future. I accept she would face discrimination, threat and stigma from her family and community.
I also accept that, despite her issues with her family, she is reliant on them. In this regard, I have weighed the fact that the applicant’s economic position in Malaysia was very limited. I consider she was only able to find lower level employment and remained reliant on her family. Her work in Australia has also been in low skilled labour ([job tasks 4 and 5]). If she returned to Malaysia, I consider she would be limited in her employment options. I consider that relevant in terms of her future reliance on her family, but also her concerns that her sexuality and stigma from her sexuality will be a barrier for her in finding work and accommodation in her country.

I do not consider she could do anything to avoid her specific profile in her home area in Melaka. I consider her situation would be compounded by her vulnerability and mental health. In all the circumstances, I am satisfied that she would face a real chance of serious harm from her family, friends and community, if she were to return to Melaka, in the form of threats of harm, threats to her liberty (in terms of her sexuality, future relationships and where she would live), serious stigmatisation and discrimination, and a denial of her capacity to subsist and earn a livelihood.
While I am satisfied that there is a real chance that she would face serious harm in the area she would return to in Malaysia (her home area in Melaka), s 5J(1)(c) requires that the real chance of persecution relates to all areas of the country.
When I asked the applicant if she could live in an area like Kuala Lumpur, she said she could not because she has family members in Kuala Lumpur, and other parts of Malaysia. She feared she would face the same treatment.
I consider the threat to the applicant if she returns to Melaka is specifically elevated, because of her proximity to her family and community, their knowledge of her sexuality, as well as her past experiences in that area. The threat to her in this area is more acute, but outside of her home area, in a city such as Kuala Lumpur, I consider her profile and the threat of harm or discrimination would be far lower. I accept she may have family in Kuala Lumpur, but I was not persuaded she was in contact with the additional family she mentioned, that she was reliant on them, or that these family members have or would target her because of her sexuality – in contrast to her family and friends in Melaka. If she were to live in a large city such as Kuala Lumpur, I am not satisfied she would have contact or be at threat from her family in Melaka, her social circle or her broader community. Outside of Melaka, I consider she would to some extent be anonymous and her sexuality would be unknown. Moreover, given that she is private about her sexuality, I consider the potential for her to be targeted for her sexuality would be far lower.
I also consider the environment in Kuala Lumpur is far different than it would be in Melaka. The UK Home Office assesses that Kuala Lumpur is part of the country where it considers an LGBTI person would not have a well-founded fear of persecution and it may be reasonable for a person to relocate there.[5]
[5] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024
Outside of eastern Sabah and Sarawak, there are no barriers to movement within the country, and I consider there would be no issue with her safely travelling to the capital. Kuala Lumpur is considered to be more tolerant of ‘LGBTI’ persons, with a younger and more diverse demographic. The city is reported to have services for LGBTI persons with HIV, shelters and community support groups (both online and NGOs). It is reported to have an LGBTI community, including marches and rallies, and ‘LGBTI friendly areas’ such as nightclubs and bars.[6]
[6] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024
That is not to suggest Kuala Lumpur is without issue or concern for its LGBTQIA+ community. DFAT highlights the raiding of a Halloween event attended by members of the LGBTQIA+ community in Kuala Lumpur in 2022, and the cancellation of a 1975 concert in July 2023, following a same-sex kiss between two band members.[7] In August 2018, Malaysia’s oldest gay bar was raided and 20 men were detained and counselled for ‘illicit behaviour’, although the bar remains open.[8] Regressive attitudes towards the LGBTQIA+ persist more broadly, for example the banning of Swatch’s Pride Collection of watches, and the potential punishment for those that possess these watches.[9] That information suggests that the authorities do on occasion target LGBTQIA+ community events in Kuala Lumpur and the Government continues to promote regressive and negative attitudes towards its LGBTQIA+ population.
[7] DFAT, Country Information Report – Malaysia, 24 June 2024
[8] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024
[9] NBC (Associated Press), 'Malaysia makes owning an LGBTQ Swatch punishable by up to 3 years in jail', NBC News (website), 10 August 2023.
Looking to her individual circumstances, if the applicant were to live in an area such as Kuala Lumpur, I do not consider she would seek to engage with the more open aspects of the LGBTQIA+ community. She is a private person and not open about her sexuality, and I find that she would not engage with these communities or events if she were to live in Kuala Lumpur. I consider this would reduce her risk profile.
Critically, while I have accepted that she is private about her sexuality, I also find this is linked to her fears of rejection because of her sexuality. While I am satisfied she would not be open about her sexuality, I consider requiring her to live privately or discretely to avoid being identified or harmed, would not be a reasonable modification consistent with 5J(3) of the Act. Separate from her fears, and my assessment of her engagement with the LGBTQIA+ community in Kuala Lumpur, I am satisfied she wants to be in a relationship with another woman. I accept that she will find a relationship in the future and at some point it is likely she would be known to be a lesbian and same sex attracted within her community.
Having regard to country advice about the situation in Kuala Lumpur, and the applicant’s individual circumstances, while I accept she may face some discrimination because of her sexuality and profile as a lesbian, I am not satisfied that she would face a real chance of serious harm in Kuala Lumpur for these reasons if she were to live there now or in the reasonably foreseeable future.
It follows that I am not satisfied the real chance of persecution relates to all areas of the receiving country Malaysia. Therefore the applicant does not have a well-founded fear of persecution, and she does not satisfy s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion?
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).
I have found there is a real chance of the applicant facing serious harm in her home state of Melaka. Having regard to the analysis above, the applicant’s individual circumstances and her emotional vulnerability, I consider the mistreatment, discrimination, denial of identity and liberty, and the harm she would face would constitute significant harm in the form of cruel or inhuman treatment, as it would involve mental pain and suffering that I am satisfied would be intentionally inflicted and should be regarded as cruel or inhuman in nature. It follows that I am satisfied there is a real risk of the applicant facing significant harm if she were to return to Melaka.
Whether it would be reasonable to relocate to another area
I have found the applicant would not face a real chance of serious harm in Kuala Lumpur. Having regard to the assessment and information above, I am also satisfied there is not a real risk of the applicant facing significant harm in the capital. I am not satisfied the discrimination she may experience would constitute significant harm in any relevant sense.
For that reason, I have considered whether it would be reasonable for the applicant to relocate to Kuala Lumpur.
As discussed above, I am satisfied the applicant could move to Kuala Lumpur, and she would be able to safely access the city. I consider this a factor in favour of relocation.
In terms of employment and accommodation, I do have some concerns. The applicant has only a limited education and skillset. She was not able to find work in Melaka that enabled her to subsist, and she remained reliant on her family. The applicant has worked in Australia, but again only in low skilled work (e.g. [job task 4]). There are the additional considerations of her emotional vulnerability and her sexuality. In terms of the latter, while I have not accepted she would face serious or significant harm in Kuala Lumpur, I do accept there is a degree of societal discrimination against the LGBTQIA+ community in the city and this may be a further barrier to her finding work and accommodation.
While I accept that there would be a range of employment opportunities available to the applicant, I am concerned that the applicant would not be able to find work in Kuala Lumpur that would enable her to live independently, and this would potentially expose her to a situation in which she had no choice but to return to Melaka, and the elevated risks in her home area. I consider these are factors that go against the reasonableness of relocation.
The applicant has no family or support network in Kuala Lumpur. While she has claimed to have family in the capital, given her past concerns with her family in Melaka and their knowledge of her sexuality, I am not satisfied that she could rely on this family for support. While I consider it viable that men and women can relocate to Kuala Lumpur without such support networks, given the applicant’s individual circumstances, in particular her emotional vulnerability and past reliance on her family, I consider the lack of support networks is a factor that goes against the reasonableness of relocation.
In terms of her mental health, DFAT indicates that Malaysia has a strong healthcare system, but there are considerable gaps in terms of mental health services. DFAT indicates that there is also a stigma attached to mental health issues in Malaysia, albeit the situation is better in urban areas.[10]
[10] DFAT, Country Information Report – Malaysia, 24 June 2024
I consider the applicant’s mental health and emotional vulnerability is a concern in terms of relocation. I consider any relocation would likely have an adverse impact on her mental health, and while I expect that the situation in Kuala Lumpur is considerably better than other parts of Malaysia, the gaps in the available care, the potential stigma, and the additional concern of her sexuality, may prevent her from getting the mental health support she may need on return to the country. I consider these are factors that go against the reasonableness of relocation.
Ultimately, while I accept the UK Home Office’s assessment that Kuala Lumpur can be a reasonable relocation option for LGBTQIA+ persons in Malaysia, that assessment is qualified by the individual circumstances of each case. In this instance, I consider the applicant’s profile, personal circumstances, and additional vulnerabilities are such that it would not be reasonable for her to relocate to Kuala Lumpur. I am not satisfied the exception in s 36(2B)(a) applies.
Protection from the authorities
Having found that there is a real risk that the applicant will face significant harm if she returns to her home region in Melaka, I have considered whether the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that she will suffer significant harm in Malaysia.
On a macro level, advice from DFAT is that ‘local and international sources’ consider the Malaysian Police to be a professional and effective police force, although ‘the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption.’[11] However, the country information indicates that the protection of lesbians and other LGBTQIA+ persons is a different assessment. The UK Home Office observes that the state authorities have been ‘responsible for harassment, discrimination, and violence, towards LGBTI persons with reports of physical and sexual assaults by police’.[12] DFAT also highlights that the arrest and prosecution of Muslim women for same-sex offences under Syariah law has also harmed the relationship between non-Muslim lesbians and the police.[13]
[11] DFAT, Country Information Report – Malaysia, 24 June 2024
[12] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024
[13] DFAT, Country Information Report – Malaysia, 24 June 2024
The UK Home Office concludes that the Malaysian authorities are able, but not willing to offer protection to members of the LGBTI community in Malaysia.[14]
[14] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024
I accept that assessment. In the circumstances of this case, I am not satisfied that if the applicant returned to Malaysia, she could obtain from an authority of the country protection such that there would not be a real risk that she would suffer significant harm for reasons of her sexuality. I am not satisfied the exception in s 36(2B)(b) applies.
Whether risk faced by applicant personally
In terms of s 36(2B)(c), as I accept the threat to the applicant is personal and specific to her profile as a lesbian, I am satisfied that the real risk of harm is faced by the applicant personally, and is not a risk faced by the population of Malaysia generally. In all the circumstances, I am not satisfied the exception in s 36(2B)(c) applies.
Having established that none of the exceptions in s 36(2B) apply, I am satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm related to her sexuality.
Conclusion
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 the refugee criteria in s 36(2)(a). However, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the complementary protection criteria in s 36(2)(aa).
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.
Date of hearing:       29 October 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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