2117269 (Refugee)
[2025] ARTA 1249
•1 May 2025
2117269 (REFUGEE) [2025] ARTA 1249 (1 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2117269
Tribunal:General Member S Dhillon
Date:1 May 2025
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 01 May 2025 at 6:03pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – bisexual – fear of arrest – fear of physical assault – sexual relationships with men conducted in a private manner – maintaining marriage relationship – employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 424, 499
Migration Regulations 1994, Schedule 2CASES
MIAC v SZQRB [2013] FCAFC 33
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 on 1 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 is a citizen of Malaysia, applied for the visa on 29 December 2019. The delegate refused to grant the visa on the basis that that they were not satisfied the applicant would be harmed on return to Malaysia.
CLAIMS AND EVIDENCE
Evidence before the Department
The applicant is [an age]-year-old citizen from Malaysia. He was born in a town in Johor. His preferred language is Malay.
In summary, in his protection visa application, the applicant stated he left Malaysia because he is a bisexual man born and raised in an Islamic country and can potentially be prosecuted and imprisoned up to 20 years, whipped, and fined for his sexual orientation under Syariah law. The applicant stated that he will not be able to continue his lifestyle as a bisexual if he returned and that Malaysia is not safe for LGBTQI+ individuals. He further states that he did not seek assistance from the authorities due to his sexual orientation, and relocation is not an option.
The applicant was invited to an interview before the delegate, which was later rescheduled by the delegate. The applicant failed to attend the interview scheduled on 21 October 2021 and did not provide any explanation for his non-appearance, nor did he provide any further information in support of his claims. A decision was made based on the information in the application form.
The delegate of the Minister refused the Protection visa application. The delegate was not satisfied that the applicant is a refugee as defined by s 5H(1) and a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act, as they were unable to obtain specific information about the applicant’s claimed sexual orientation, or past experiences as a bisexual man in Malaysia. They were also unable to obtain any information in relation to the applicant being targeted, dates or locations of key events, and the context of the applicant’s general claims regarding the lack of protection from the authorities. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk he will suffer significant harm. The delegate found that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
The review application
The review application was lodged on 22 November 2021. On 5 August 2024, the applicant submitted a ‘Pre-hearing invitation form’ to the Tribunal summarising his claims as set out in the application form. The applicant also indicated he would provide further submissions to the Tribunal prior to the hearing, however, nothing further was received by the Tribunal.
The applicant appeared before the Tribunal on 27 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Receiving country
The applicant claims to be a citizen of Malaysia and no other country. He presented a passport at hearing which had been issued by the authorities of Malaysia, which records his nationality as Malaysian. In the absence of any evidence to the contrary, I accept that the applicant is a national of Malaysia and that Malaysia is the receiving country for the purpose of assessing his claims.
The issue in this case is whether the applicant will face a real chance of serious harm or a real risk of significant harm if he returns to Malaysia, as a bisexual man, or for any other reason.
Evidence before the Tribunal
In response to my questions at hearing, in summary, the applicant gave the following evidence.
The applicant grew up in a village, in Johor. The applicant then moved to Johor Bahru and lived there for a number of years prior to coming to Australia. The applicant is married and has [number] children who continue to reside with his wife in Malaysia.
The applicant’s sexual identity
The applicant gave evidence that his friend, [Mr A], helped him to apply for protection while he was working in [Town 1], Victoria. [Mr A] was the first person the applicant told he was bisexual and [Mr A] told him he could apply for a protection visa. He told [Mr A] the information for the form and [Mr A] put this information in the form for him. When asked if he knew what was in the application, the applicant said he just knew that it said something about him being bisexual and liking both men and women, and that people in his country don’t like people like him. When asked why his protection visa application was missing most detail about his personal particulars, such as past addresses and employment, the applicant said it was because when he applied for protection he wanted a clean slate and did not want people to know what happened to him before. When asked why he did not go to his protection visa interview before the delegate, the applicant responded because he had an argument with [Mr A]. I asked the applicant what he meant, and the applicant said that they were friends, or a couple, they had an argument and he did not inform him about the interview. I noted that the email address that was used to notify the applicant of the interview included his full name and looked like his own email address rather than [Mr A’s], and the applicant repeated that he did not receive the notification of the interview. The applicant also said he did not know the Department had refused his application. I asked the applicant why he had applied for a review before the Tribunal and the applicant then said that he did receive a refusal letter from the Department two years ago that he had forgotten. [Mr A] then helped him to submit the application for review to the Tribunal, but they are not in touch now.
The applicant gave evidence that he used to like females and was once married. He has [number] children from his marriage but now prefer males and has preferred males from around 2005. He is not formally divorced from his wife and she continues to live in Malaysia with their children. They are still in touch and speak approximately once a month, but she doesn’t know the applicant is interested in men. She believes the applicant is in Australia to live and work, and he also continues to support his wife and children financially. The applicant’s children are aged [ages and are] in school. The applicant is also still in touch with his father, who he assists financially, and his [siblings] who live in Malaysia.
The applicant lived in Johor Bahru prior to coming to Australia. The applicant lived alone for five years prior to coming to Australia as his wife went to work in Kuala Lumpur during 2013 -2018, while the applicant stayed in Johor Bahru. The applicant worked at a [business 1] in [Country 1] during this time [details deleted].
The applicant arrived in Australia with his wife in October 2018. The applicant initially told his wife they were just coming to Australia for a holiday, and after arriving he told his wife that he wanted to stay. His wife returned to Malaysia after one week. When asked why he came to Australia, the applicant said because was worried the government will find out he is bisexual and because of that he had to flee but his wife did not know this. The applicant’s wife stayed with him for approximately one week and after that she returned to Malaysia to continue her employment.
The applicant then worked in [Town 1] on a farm for six months, where he met [Mr A].
When asked if he had experienced any harm in Malaysia the applicant said he had not, but after the Nur Sajat case, they didn’t feel safe at all because if they were caught they would be arrested and punished severely. The applicant said he had never experienced any harassment or discrimination in Malaysia because they always did things privately but his friends would always talk about getting caught and one day the religious council probably will catch them and they will get caught and punished. The applicant stated his biggest concern is getting whipped.
When asked if he used any words in particular to refer to his sexual identity, the applicant responded that he likes both men and women. He gave evidence that his attraction to men started around the time he started working in [Country 1], when he was around [age range], because there were lots of men there who were very feminine. When asked if there was anyone in particular who made him realise he was attracted to men, the applicant said the manager that he worked with at a [business 1] in Johor Bahru, ‘[Partner A]’. The applicant stated he was initially attracted to [Partner A] because he was handsome, effeminate and knew how to win his heart. They were always working together, training together, and they would eat together and be together. When asked how the relationship developed, the applicant again said they spent a lot of time together in [Country 1], and they then went to [Country 2] for a day for a work trip. Their entire team went, but the applicant and [Partner A] stayed in a room together in [Country 2]. When asked when he travelled to [Country 2], the applicant stated he could not remember, and when I noted the applicant did not mention any travel to [Country 2] when discussing his travel history earlier in the hearing, the applicant said he forgot. I asked the applicant how [Partner A] came to realise the applicant was attracted to him, and he said the first time they travelled to [Country 2] they stayed in one room and after that ‘we returned and a few months later and … you know’. When asked to elaborate, the applicant said the first time they slept in the same bed [Partner A] did not dare to touch him because he wasn’t sure, but then he touched the applicant and the applicant touched him back and then they performed oral sex on one another.
After around two and a half years, the applicant said that friends came to know and realise about their relationship. When asked to clarify, the applicant said they realised that the applicant and [Partner A] had a special relationship. This is because once when they were in [Country 1] and stayed somewhere overnight, another co-worker saw them coming out of a room together. This person then pressured the applicant and he gave them an excuse. This person also knew the applicant’s wife, and this made the applicant worried.
The relationship with [Partner A] lasted around five years and after the applicant resigned from the [business 1] in around 2018, he told [Partner A] they cannot be too close anymore because too many people know now and most of the people who work with the applicant knew his wife and he was worried she would find out. The applicant told [Partner A] they wouldn’t stay in touch anymore. When asked how [Partner A] took this, the applicant said he asked friends to find out about him. They are not in touch now and have not had contact since 2018 when the applicant resigned. I asked the applicant if there was anything in particular about the relationship that was significant to him given they had been together for 5 years. The applicant responded he ‘did not like anything else apart from the man’s penis’. He then confirmed the relationship was only a physical relationship to him. He then said the only reason he stopped is because [Partner A] then wanted more than oral sex and the applicant didn’t like it. The applicant said they went to a party once in an apartment in [Country 1] which was all men and [Partner A] wanted to all join in together and the applicant did not want to. This was the only time the applicant went to one of these parties. The applicant said they took over 10 overnight trips together. When asked if it was just the two of them on these trips, the applicant said most of the time it was just the two of them.
In relation to the nature of the relationship, the applicant said he was only interested in ‘blowjobs’ and other than that he did not want anything else. The applicant stated that he did not want an emotional relationship, and their relationship was primarily physical and only ‘blowjobs’ nothing else.
The applicant was unable to provide any evidence of his relationship with [Partner A], including evidence of text messages or photos. He said he had one photo on his phone when he arrived in Australia but he no longer has that phone.
I noted the applicant had stated earlier in the hearing that a co-worker had seen them coming out of a hotel room together in [Country 1] and asked what happened after this. The applicant responded that the co-worker asked him ‘is there anything to your relationship – you guys are always together’ and said to the applicant that he better be careful because ‘if that’s what it is’, it’s not allowed in Malaysia’.
I asked the applicant if he did anything differently after this. The applicant said they did things discreetly, they were chatting on the phone, and they would go to a coffee house where these people don’t go. When asked what he would do in the coffee house, the applicant said they would chat and [Partner A] would say ‘when can we go somewhere again’. They would always frequent many different [venue] because they had been caught and someone suspected there was something special between them.
The applicant stated that since [Partner A], he has not been in any relationships and only briefly with [Mr A]. They started their relationship while they were working on a farm together and the applicant found out he was bisexual from his friends. The applicant said [Mr A] is handsome and he became close to him. At that time he didn’t know he had another ‘male friend’, and so they became friends, and stayed together with his friend for one month. After one month of dating [Mr A’s] friend realised they were becoming closer. The applicant then said the extent of their relationship was oral sex on one occasion in [Mr A’s] room. When I asked the applicant how he felt when he told [Mr A] about his sexuality, he said that he did not feel anything. Besides this, the applicant has not had any further relationships with men since arriving in Australia.
The applicant gave evidence that he does not disclose his sexual orientation to people generally, because he is very private. He did not tell people when he initially realised he was bisexual because he preferred to be on his own and didn’t want people to know. He said he doesn’t tell people in the Malaysian community in Australia about his sexuality because they are judgmental. When asked how he felt about disclosing his sexuality to [Partner A], the applicant said initially he was scared. When asked to clarify what he meant, the applicant said that in [Country 1] its fine because they don’t have strict rules, but in Malaysia he was scared of being harassed because the punishment is quite severe.
The applicant stated that his family in Malaysia does not know he is bisexual. He said they would hate it if they knew and think it is not right. When asked about his religion, the applicant said that he is still a practising Muslim. I asked the applicant if his religion said anything about sexuality. The applicant said that according to his religion a relationship between a man and man is a big sin but he cannot control his feelings.
In terms of his relationship history since arriving in Australia, the applicant said that he has not had any relationships in the last five years besides the brief relationship with [Mr A]. When asked why, the applicant said he wants to and is interested in men but he is scared of explaining himself and he doesn’t know if a person he is interested in is bisexual or not and whether the person would like it. He also recounted an incident where a co-worker from his workplace liked another man and he touched that person’s ‘privates’ and that person in return beat him. When asked if he had used any dating apps or spoken to anyone online, the applicant said no, because he is worried about AIDS, and he also realised that most of the people here want more than oral sex and he is not okay with that.
When asked if he knew of the LGBTQIA+ Malaysian community in Australia, the applicant said he had heard they go to lots of clubs in Melbourne but he is scared because they can’t keep secrets. When asked if he had any fears around disclosing his sexuality in Australia, the applicant said he was scared that if people find out he’s bisexual they won’t want to be friends with him anymore and he will be isolated. Then when asked if there were things he could do in Australia in terms of his sexuality that he couldn’t do in Malaysia, the applicant said they have freedom here but in Malaysia people will find out. When asked if he had any plans for the future if he were able to stay in Australia, the applicant said he wouldn’t stay in [Town 2] but might move to Melbourne or Sydney and do whatever he wants, like get his licence and a better job, and if he lived in a bigger city he would be free. Alternatively, when asked what would happen if he returned to Malaysia the applicant said that he did not know if he could change at this age, that he cannot return because he will be arrested or jailed. I asked the applicant why he would be arrested or jailed and he responded that he was worried that he won’t be able to control his feelings and he might look for [Partner A] again or [Partner A] might look for him, and he is worried he will be arrested.
Throughout the hearing, I discussed relevant country information with the applicant. I explained that the DFAT Country Information Report on Malaysia[1] indicates that despite the criminalisation of same-sex sexual acts, the enforcement of laws remains rare and that state Syariah laws in relation to same sex sexual activity have been declared invalid by the Federal Court in Malaysia. I explained to the applicant that this information indicates that although same-sex sexual acts are criminalised, they are rarely prosecuted in practice. The applicant responded that it has happened in Malaysia and a person was punished. He said that if you are not arrested you are safe but if arrested you will be in trouble by the religious authorities.
[1] Department of Foreign Affairs and Trade Country Information Report – 24 June 2024.
I also explained to the applicant that relevant country information also indicates that the risk of harm to people from LGBTIQIA+ backgrounds differs from place to place and according to social status, education, religious and cultural background and geographical location. This suggests that there would be places in Malaysia where the applicant could live without facing a real chance of serious harm, for example, urban areas such as Kuala Lumpur, where people are generally more accepting of LGBTQIA+ individuals. The applicant responded that he also lived in a big city, Johor Bahru, prior to coming to Australia but there were still Muslims everywhere. The applicant did not have anything further to add and did not request additional time to respond to any country information.
I discussed with the applicant what would happen if he had to return to Malaysia, for example, would he feel the need to live differently. The applicant said that he is [age] now, and when he is 50 he will be too old to work there, so if Australia gives him protection until he’s around 50 perhaps he will be able to return. He also stated that maybe if he returns when he is 50 maybe he won’t have feelings towards men anymore, or maybe they will be less strong because he realises those feelings and behaviours have slowed down as he gets older. He then added that he still likes ‘it’, but it is not as strong as before when he was around [age range] years old.
Economic claims
Towards the end of the hearing, I asked the applicant if there was any other reason he feared harm in Malaysia. At that point, the applicant said that Malaysia is very unstable politically and economically and it is very difficult to find jobs. I raised with the applicant that he has been working in Malaysia consistently for a number of years prior to coming to Australia, and since coming to Australia, he has also been resourceful in finding work. The applicant responded that in Malaysia it is not easy to find a suitable job with reasonable pay and it is not balanced at all, and provided the example that one month’s wages in Malaysia would approximately 2000 Ringett which would be equivalent to 700 AUD. I put to the applicant that while I accepted that he was in a better financial position in Australia, able to earn comparatively more money than in Malaysia, and if he returned his financial position would not be as good, this in itself may not constitute serious harm. The applicant acknowledged this.
Assessment of claims and findings
Applicant’s past relationships in Malaysia and sexual identity
Although I accept some aspects of the applicant’s evidence, including that he is attracted to both men and women, I have concerns he has exaggerated his claims to fear harm in Malaysia. The applicant’s evidence was contradictory and confused at various points throughout the hearing, as outlined relevantly below.
In relation to the applicant’s evidence about his relationship with [Partner A], I accept the applicant met [Partner A] when they were working at a [business 1] together and he was physically attracted to him, and as they were always working and training together, they became closer. When discussing how the applicant met [Partner A], he was able to describe his first encounter with [Partner A] in a clear and forthright manner.
However, the applicant’s evidence in relation to the development and extent of his relationship with [Partner A] was contradictory throughout the hearing. For example, the applicant said his physical relationship with [Partner A] began when they were on a work trip in [Country 2]. When I noted the applicant had not mentioned any trips to [Country 2] when we canvassed his travel history during the hearing, he said he forgot. The applicant said they were physical on this work trip, but he was unable to provide any approximation of when this work trip took place such as the month or year. Later in the hearing, the applicant said that his first physical encounter with [Partner A] occurred on their second work trip, and that the first trip nothing happened – they just shared a room, and then were physical on another trip a few months later. Given this was a significant development in their relationship and the first time the applicant claims he was physical with the same sex, I consider it is reasonable to expect the applicant to recall approximately where and when this occurred. The applicant also stated he took approximately ten overnight trips with [Partner A] but was unable to provide any details about these trips such as where and approximately when they took place. Despite my concerns around the applicant’s evidence, I am willing to accept he was in a physical relationship with [Partner A], which consisted of oral sex on a number of occasions over five years, taking place in [Country 1] and on at least one occasion, [Country 2].
The applicant stated on a number of occasions throughout the hearing that his relationship with [Partner A] was a purely physical relationship and consisted of oral sex for around 5 years. He stated that he did not want an emotional connection with [Partner A] and that he did not want anything other than oral sex. I accept the applicant’s evidence that his relationship with [Partner A] was purely a sexual relationship and note that he made this statement using different phrases, at numerous points throughout the hearing. Later in the hearing, the applicant claimed that him and [Partner A] started to be discreet about their relationship by going to chat at coffee houses where they would not be seen or frequenting different restaurants. I do not accept the applicant ever went to coffee houses or restaurants to chat or spend time with [Partner A], and that they had to behave discreetly in order to date and spend time together. This is inconsistent with numerous statements he made throughout the hearing that their relationship was only a sexual relationship, that there was nothing else of significance in their relationship, and that he did not want any emotional connection with [Partner A]. Accordingly, I do not accept the applicant would go to the trouble of finding different coffee shops and restaurants to spend time with [Partner A], or that he would risk being seen with [Partner A] in circumstances where he was concerned his wife would find out about his sexual relationship.
In relation to his colleague becoming aware of their relationship, the applicant initially said his colleagues noticed his close relationship with [Partner A] and they all knew his wife. He gave evidence that a colleague saw them leaving a hotel room together and ‘pressured’ the applicant so the applicant gave him an excuse. The applicant was worried as this person knew his wife, however, the applicant did not mention this person making any specific threats towards the applicant. Later in the hearing, the applicant said that after this person saw him and [Partner A] leaving the hotel room together, he asked him if there was anything to their relationship and the warned the applicant he should be careful and implied that if the applicant was conducting a physical relationship with [Partner A] that this was illegal. The applicant’s evidence in relation to this event was vague, and I note that he initially did not mention his colleague making any specific warnings or threats towards him. It was only after I specifically asked the applicant if his colleague had said anything about seeing him and [Partner A] leaving the hotel room that the applicant said he gave him a warning. I also note that the applicant was unable to provide any details in relation to where or when this occurred, other than to say they were in a hotel in [Country 1]. When asked why his colleague was also at the hotel, the applicant said it was coincidental. I do not accept the applicant’s evidence that he was seen leaving a hotel room with [Partner A] by a colleague and that this colleague subsequently warned him to be careful and implied that same sex acts are illegal. I do not consider it plausible that the applicant’s colleague would coincidentally be at the same hotel, and specifically in the vicinity of the applicant’s hotel room, at the same time, so as to see him and [Partner A] leaving their hotel room together. I also place weight on the fact that the applicant did not mention his colleague making any specific threats or warnings towards him until I raised this. I also consider that if this event had occurred, the applicant would have been able to at least provide an approximation of when it occurred, given its significance.
While I accept that the applicant’s colleagues noticed he had a close relationship with [Partner A], I do not accept that any of his colleagues or anyone else had confirmation that the applicant and [Partner A] were in a sexual/physical relationship. I also do not accept the applicant ended this relationship because he was worried he would be reported to Malaysian authorities for being bisexual, or due to fear of harm from the Malaysian authorities. The applicant’s own evidence when asked why he ended the relationship with [Partner A] was that his colleagues were suspicious and knew his wife, and he was worried they would tell her, rather than because he as concerned he would be reported to the Malaysian authorities, discriminated against, or harassed or harmed by the authorities, or anyone else. When discussing the end of the relationship later in the hearing, the applicant added that he ended the relationship because [Partner A] wanted more than oral sex and the applicant didn’t like this. I accept the applicant’s explanations and find the applicant ended his relationship with [Partner A] primarily because he was worried his co-workers noticed his close relationship with [Partner A] and that someone would tell his wife who still considered herself married to the applicant, and further because [Partner A] wanted more than oral sex which the applicant did not want.
In relation to his sexuality, the applicant gave evidence consistently throughout the hearing that he does not disclose that he is bisexual to people because he is a very private person. When asked if he told anyone when he realised he was also attracted to men, the applicant said no because he preferred to be on his own and didn’t want people to know. I accept the applicant’s evidence that he did not tell people in Malaysia because he is a very private person and did not want anyone knowing. This was consistent with his evidence that he does not disclose that he is bisexual in Australia either. The applicant also stated his family members are not aware that he is bisexual, and they would hate it and think it is not right. When asked how he felt disclosing his sexuality to [Partner A], the applicant initially said he was scared. When I asked the applicant why he was scared he then changed his evidence and said that in [Country 1] its fine because they don’t have strict rules but in Malaysia, he was scared of being harassed because the punishment is quite severe.
I have considered whether the applicant did not disclose his sexuality in Malaysia due to a fear of harm. While I accept the applicant’s family may not approve of his bisexuality and that same sex acts are illegal in Malaysia, I do not consider that he has hidden his sexuality in Malaysia due to a fear of harm from his family, the broader community or because he was worried about being harassed, investigated or facing punishment from the Malaysian authorities. Rather, I find the applicant does not wish to disclose his bisexuality because in his own words, he is very private, people are judgmental, and further because his primary concern in Malaysia was that his wife would find out. I note the applicant’s evidence was that he also does not disclose his sexuality in Australia for the same reasons.
Applicant’s relationships and conduct in Australia
In relation to the applicant’s relationships in Australia, I accept the applicant had one brief sexual encounter with [Mr A], who he met while working on a farm in [Town 1] and casually dated for approximately a month. I accept that besides this, the applicant has not had any relationships with either men or women since arriving in Australia. With reference to relationships with men, the applicant gave evidence that he wants to but is not sure whether a person is bisexual, and most people here want more than oral sex which the applicant does not want to do. I accept the applicant’s evidence that he finds it difficult to tell whether a person is bisexual or interested in same sex relationships, he does not want use dating apps or online platforms, and he does not want more than oral sex which are all contributing factors for him not pursuing same-sex relationships since his brief relationship with [Mr A].
In relation to the applicant’s expression of his sexual identity, the applicant gave evidence that he does not disclose that he is bisexual and does not have any involvement with the LGBTQIA+ Malaysian community because they cannot keep secrets. I accept the applicant’s evidence that he does not wish to disclose his sexual identity within the broader community because he considers the Malaysian community to be very judgmental and is worried people will not want to be friends with him and he will be isolated. I also accept there may be some stigma and judgement within the Malaysian community in relation to same sex relationships. However, I also note the applicant consistently stated throughout the hearing that he is a private person, and I place weight on the applicant’s evidence that he ‘felt nothing’ when disclosing his sexuality to [Mr A] in Australia, indicating that disclosing his sexuality within the community is not of significance to the applicant. Based on the applicant’s evidence, I accept it is the applicant’s personal preference not to disclose his sexual identity broadly.
Does the applicant hold a well-founded fear of persecution in Malaysia?
During the hearing I discussed with the applicant how he would behave if he returned to Malaysia, and whether he would pursue relationships with men. At various points throughout the hearing the applicant stated that he cannot control his feelings in relation to his attraction to men, that he did not know if he could change at this age, and that he cannot return because he will be arrested or jailed. When I asked the applicant why he would be arrested or jailed he responded that he was worried that he won’t be able to control his feelings and he might look for [Partner A] again or [Partner A] might look for him. However, later in the hearing, when asked what would happen if he had to return to Malaysia, the applicant said that he is [age] now, and when he is 50 he will be too old to work there, so if Australia gives him protection until he is around 50 perhaps he will be able to return. He also stated that maybe if he returns when he is 50 maybe he won’t have feelings towards men anymore, or maybe they will be less strong because he realises those feelings and behaviours have slowed down as he gets older. He then added that he still likes it, but it is not as strong as before when he was around [age range] years old.
I accept the applicant’s evidence that he is still attracted to men, even if this attraction has slowed down as he gets older, and I find there is a real chance the applicant would find himself attracted to men if he returned to Malaysia. The applicant’s evidence was that he has not engaged in any same sex relationships for the last five or so years, he can feel his feelings are not as strong, and those behaviours have ‘slowed down’. I accept the applicant’s evidence that he has not felt the same desire to engage in physical relationships over the last five years. The applicant’s evidence was confused and at times contradictory in relation to whether he would pursue physical relationships with men in Malaysia in the foreseeable future, however he did not state in absolute terms that he is no longer interested in physical relationships with men. I consider there is still a small, but not remote, chance the applicant may engage in sexual acts with men upon returning to Malaysia. Accordingly, in considering how the applicant would behave if he returned to Malaysia, I consider there is small, but a real chance he would engage in same-sex sexual acts if he returned to Malaysia in the foreseeable future.
I do not accept the applicant would find [Partner A] if he returned to Malaysia or that [Partner A] would come looking for him. The applicant gave evidence throughout the hearing that they are no longer in touch and have not had contact since he left Malaysia, approximately six years ago. The applicant consistently stated the relationship was purely physical and not a relationship of significance to him. Further, given he is no longer in contact with [Partner A], there is no reason to believe [Partner A] would be aware if he returned to Malaysia, or come looking for him.
In considering whether the applicant would come to the attention of the authorities for engaging in sexual acts with men, I have considered the applicant’s evidence and past conduct. The applicant consistently maintained throughout the hearing that he is a private person, and generally does not wish to disclose that he is bisexual, including to friends or family. I note the applicant has also conducted his previous same sex relationships in a private manner and his one relationship in Malaysia primarily consisted of sexual acts conducted in private settings. I consider that if the applicant were to engage in same sex relationships upon returning to Malaysia, he would do so in a similar manner. I find that this would be because the applicant is, in his own words, a private person, and also because he is still legally married to his wife and would not want her to find out. In relation to the current status of his relationship with his wife, I asked the applicant whether his wife had any knowledge of his relationships. The applicant said she would not be happy if she knew he has a relationship with another woman let alone other men. When asked, the applicant confirmed that his wife would still consider them to be married given they have not divorced.
I also note that when asked if there were things he could do in Australia in terms of his sexuality that he couldn’t do in Malaysia, the applicant said they have freedom here but in Malaysia people will find out. The applicant could not articulate with any specificity what freedom he has in Australia that he would not have in Malaysia, or what he feared would happen in Malaysia, other than to say that he did not know if he could change at this age, that he cannot return because he will be whipped, arrested or jailed. The applicant could not articulate what he would have to change in terms of his lifestyle or identity if he returned to Malaysia.
In relation to the relevant country information, the Department of Foreign Affairs and Trade Country Information Report on Malaysia[2] (‘DFAT Country Report’) indicates that Malaysia is a ‘conservative Islamic nation’ and is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent.’[3] Across Malaysia there are 52 laws that criminalise different forms of LGBTQIA+ behaviour. Prosecutions have taken place under these laws, including under Section 377A/377B (Unnatural Offences) of the Penal Code, which includes penalties of whipping and up to 20 years in prison. Numerous state-level syariah-based laws prohibit same-sex relations and non-normative gender expression.[4] JAKIM and other state level religious authorities have occasionally conducted raids on LGBTQIA+ events, and state officials have conducted raids on private premises.[5] Members of the LGBTQIA+ community are typically prosecuted under state-based syariah legislation rather than federal law. However, while the investigation of such offences is reasonably common, and prosecutions have occurred, successful prosecutions are rare.[6] Authorities at federal and state level have promoted so-called ‘rehabilitation’ or ‘re-education’ programs aimed at changing sexual orientation or gender identity, also known as conversion therapy.[7] LGBTQIA+ issues are considered taboo in Malaysia, particularly among Muslims. Online abuse against people who raise LGBTQIA+ issues online is common.[8]
[2] Department of Foreign Affairs and Trade Country Information Report – 24 June 2024.
[3] Department of Foreign Affairs and Trade Country Information Report – 24 June 2024, 3.136.
[4] Ibid, 3.127.
[5] Ibid, 3.130.
[6] Ibid, 3.131.
[7] Ibid, 3.132.
[8] Ibid, 3.133.
During the hearing I discussed the above country information with the applicant. I also put to the applicant that the DFAT County Report indicates that while same sex relationships are illegal, despite its criminalisation, the enforcement of laws remains rare. Similarly in relation to Syariah law, the federal court has declared that state laws in relation to same sex sexual activity are invalid.[9] In response, the applicant stated that it has happened in Malaysia before and a person was punished. The applicant also said that if you are not arrested you are safe but if arrested you are in trouble by the religious council.
[9] Ibid, 3.127.
I also put to the applicant that the DFAT Country Information Report indicates that the risk of harm to people from LGBTIQA+ backgrounds differs from place to place and according to social status, education, religious and cultural background and geographical location. This suggests that there would be places in Malaysia where the applicant could live without facing a real chance of serious harm, for example, urban areas and bigger cities where people are generally more accepting of LGBTQIA+ individuals. The applicant responded that he had come from a big city, Johor Bahru, but there were still Muslims everywhere. The applicant also said that he is returns at the age of 50 he will be older and won’t be involved in that sort of thing anymore but would instead participate in social activities to do with kindness in accordance with Muslim values. The applicant also stated that all he needs is protection in Australia until the age of 50.
I have considered the applicant’s evidence in light of the relevant country information. I am not satisfied the applicant would come to the attention of the authorities or religious council if he returned to Malaysia. The applicant gave consistent evidence that his relationships with men were purely of a sexual/physical nature, and that he has always conducted his sexual relationships with men in a private manner. As I have found above, I consider the applicant would continue to conduct any future same sex relationships in a similar manner if he returned. I do not consider the applicant would discuss or disclose his sexual identity publicly if he returned to Malaysia, not due to any fear of harm from the authorities, but because doing so does not hold any significance for him and he considers it a private matter. I note that the applicant mentioned that he attended an all-male party in an apartment in [Country 1] on one occasion, however, that he did not enjoy this experience. Aside from this, the applicant’s evidence was that he did not attend LGBTQIA+ friendly bars or clubs in Malaysia and has had no involvement in the LGBTQIA+ community in Australia. Accordingly, I do not accept the applicant would seek to become involved in the LGBTQIA+ community if he returned to Malaysia, or that he would participate in any activities in the public sphere which would lead to him being publicly identified as bisexual.
It follows from the above that I do not accept there is a real chance the applicant would come to the attention of the authorities on the basis of being bisexual, or that he would be investigated, arrested, convicted, imprisoned, fined, whipped, or experience any other form of serious harm as defined under s 5J(5) of the Act, or otherwise, on the basis of engaging in same-sex acts in Malaysia or as a bisexual man.
I have considered whether the applicant’s behaviour in conducting his sexual relationships with men discreetly upon return to Malaysia would constitute behaviour modification for the purposes of s 5J(3). I find that the applicant’s primary motivation in conducting any same sex relationships in Malaysia discreetly would be due to his concerns his wife and possibly other family members will find out, rather than for the purposes of avoiding harm from the authorities, or anyone else. I also give weight to the applicant’s evidence throughout the hearing that he is a private person and generally does not wish to disclose his sexuality to others, both in Australia or Malaysia. Accordingly, I find that in the applicant’s case, conducting his relationships in a discreet manner upon returning to Malaysia would not be for the purposes of avoiding serious harm, and would not amount to behaviour modification for the purposes of s 5J(3)(c).
At points throughout the hearing, the applicant stated that Malaysians are judgmental. I accept that there is stigma against LGBTQIA+ individuals in Malaysia and to this effect I note the DFAT Country Report indicates there is societal discrimination against individuals in the LGBTQIA+ community, which varies depending upon their sexual orientation and gender identity, socio-economic status, religion, geographic location, and degree of openness regarding their sexual orientation and gender identity.[10] However, as discussed above, I do not accept the applicant has ever been open about his bisexuality and I do not accept the applicant would disclose his bisexuality to others in the community if he returned to Malaysia. It follows from this that I find the applicant would not be subject to societal discrimination due to his bisexuality in Malaysia or that there is a real chance he would suffer serious harm on this basis.
Applicant’s economic circumstances
[10] Ibid, 3.147.
Towards the end of the hearing the applicant made a broad claim that the economy is unstable, he will not be able to find employment if he returns, and he will be earning much less than what he earns in Australia. While I acknowledge the applicant’s preference to remain in Australia where he has the capacity to earn more, based on the applicant’s extensive employment history, including his previous employment across different sectors in Malaysia and Australia, I do not accept that he would be unable to find employment if he returned to Malaysia, or that he would be unable to support himself. Further, I explained to the applicant at hearing the criteria to qualify for protection as set out in the Act and in the Regulations and put to him that while I understood his earning capacity in Malaysia would be less than in Australia, it did not appear that a decline in the applicant’s financial circumstances in Malaysia would amount to serious or significant harm. The applicant acknowledged this and did not have any further comment.
While I acknowledge that the applicant’s financial circumstances and earning capacity may be better in Australia, I do not accept that the applicant would be unable to find suitable employment in Malaysia, or that he would be deprived of the capacity to find employment, access essential services, or subsist in Malaysia, for one of the reasons set out under s 5J(1)(a), or any other reason. Accordingly, I do not accept there is a real chance or real risk the applicant would suffer serious or significant harm in Malaysia on this basis.
Does the applicant satisfy the complementary protection criterion for protection?
As I have found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, I have considered whether 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 he will suffer significant harm. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[11]
[11] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
For the reasons given above and having regard to the totality of the applicant’s circumstances, I am not satisfied that there are substantial grounds for believing there is a real risk the applicant will face significant harm, as defined in s 36(2A) of the Act if he is removed from Australia and returned to Malaysia.
Concluding findings
For the reasons given above, I am 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), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(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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