2202352 (Refugee) - [2025] ARTA 1961

2202352 (Refugee) [2025] ARTA 1961 (12 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2202352
Tribunal:General Member S Dhillon
Date:12 September 2025

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

Statement made on 12 September 2025 at 10:01am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – Muslim gay men in Malaysia – penalised under Syariah laws – discrimination, harassment and exclusion – fears forced marriage or imprisonment – long-term partners – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
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 15 February 2022 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 national of Malaysia applied for the visa on 19 July 2018.
BACKGROUND
Evidence before the Department
In his application form the applicant claimed he left Malaysia as he does not have rights as a gay person. He claimed he found himself attracted to persons of the same sex from [age]. He stated the gay community does not have any rights or support in Malaysia, as in Muslim society gay Muslims who conceptualise their sexuality are seen as immoral and wrong. They are penalised under Syariah laws, Muslim society has taunted him as a ‘satanic seed’, and he has received numerous threatening phone calls. He has problems fitting into society and discrimination is overwhelming. He has used strategies to protect himself and his partner’s sense of identity and some of them have led to poor social and psychological outcomes. He fears negativity and life-threatening incidents by society and the authorities. He has to find another path where he can live as a gay couple and to have a life of equality. After he heard about the recent approval of same sex marriage in Australia, he knew he had to move to Australia if he wants to have a family and where people are treated legally.
In terms of past harm, the applicant stated he has been bullied verbally and excluded from social activities. He has received verbal warnings from the elders in his community that he will be harmed if he does not change. He senses discrimination everywhere and at work opportunities for promotion gave faded and he has no chance. Religious activities groups are always harassing them with letters, words and ‘alarming treatment’. When asked what harm he fears in Malaysia, the applicant stated he will be penalised by the government, and after serving the penalty it will be hard to blend into the community or society, his job opportunities will decrease and he will experience trauma which could lead to retaliation or life-threatening situations. The applicant claims the authorities will not protect him as they penalise anyone in Malaysia who has the intention of building a gay family, they are sworn to uphold and protect national law, and being gay is a threat to the religion and society. The applicant claims he cannot relocate to another area of the country as Syariah law applies to the whole country.
The applicant attended an interview before the delegate on 4 November 2021. I have listened to a recording of this interview, and where relevant, I have referred to this below.
After the delegate’s interview, the applicant made post hearing submissions, comprising of:
-Tenancy receipt dated [July] 2021, indicating a rental payment made by [Partner A] and [the applicant].
-Photographs of the applicant and [Partner A] being physically affectionate in public and private spaces.
-Photographs of the applicant and [Partner A] together in various public places in both Australia and overseas.
-Photograph of a [car].
-Photograph of an unidentified woman in a wheelchair.
The delegate accepted the applicant had a sexual relationship with his uncle as well as with his friend while at school. However, the delegate did not accept that the applicant was in a same-sex relationship with his ex-partner. The delegate found that there were discrepancies between information provided in the application form and the formal interview. The delegate further found that due to the nature of the applicant’s relationship with his uncle, and the fact that he was very young when he engaged in a same-sex sexual relationship with another boy, that it did not necessarily follow that the applicant identifies as gay or is same-sex attracted as an adult. The delegate did not accept the applicant had been with another man since [being an adult], or that he experienced any kind of harm due to being gay. The delegate also placed weight on the applicant’s return trip to Malaysia in early 2018 and considered his failure to make an application for protection at the earliest opportunity undermined his claims. The delegate considered there was no information to support the applicant had expressed same-sex attraction as an adult or would be imputed to be same-sex attracted. Therefore, the delegate rejected the applicant’s claim to be gay or imputed to be gay.
On this basis the delegate was not satisfied there is a real chance that, if the applicant was returned to Malaysia, the applicant would suffer persecution for reasons relating to him being a Muslim homosexual in Malaysia. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
The delegate was also not satisfied that there are substantial grounds for believing, that as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk the applicant would suffer significant harm as defined by s36(2A) of the Act, and therefore was not satisfied the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
Evidence before the Tribunal
The applicant lodged his application for review on 22 February 2022.
On 29 May 2025 the applicant returned a pre-hearing information form, where he reiterated his claims for protection. He also added that he met his long-term partner when he was [age], and that he is depressed and lost, it has been seven years and he is still living in fear of returning to his home country.
The applicant appeared before the Tribunal on 26 August 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s witness, who will be referred to as ‘Mr B’. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
After the Tribunal hearing, the applicant provided the following:
-Photographs of the applicant and [Partner A] being physically affectionate in public and private spaces, which were previously provided to the Department.
-Photographs of the applicant and another male being physically affectionate on what appears to be the applicant’s birthday.
-Photograph of the applicant and another male at the beach.
-Certificate of participation for volunteering at the Sydney Mardi Gras parade in [year].
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.
CONSIDERATION OF CLAIMS, REASONS AND FINDINGS
The issue in this case is whether the applicant holds a well-founded fear of persecution in Malaysia based on his sexuality, or for any other reason. For the following reasons, I have concluded that matter should be set aside and remitted for reconsideration.
Receiving country
The applicant claims to be a citizen of Malaysia and no other country. He presented a passport at hearing which has been issued by the authorities of Malaysia which records his nationality as Malaysian. I accept the applicant is a citizen of Malaysia and Malaysia is the receiving country for the purpose of assessing his claims.
Evidence at hearing
During the hearing, I discussed with the applicant his family, employment, sexuality, migration history, past relationships, his experiences in Malaysia and why he fears returning there. Although I had concerns in relation to certain aspects of the applicant’s evidence as discussed below, he was generally able to provide information in relation to claimed events and appeared to be recounting events from the past which he genuinely experienced. I also observed that the applicant’s evidence at hearing was broadly consistent with the oral evidence he provided during his interview with the Department.
The applicant is [an age]-year-old male from Penang. In terms of his protection visa application, the applicant gave evidence that he prepared his applicant after he arrived in Australia and while he was living with his partner at the time, [Partner A]. The applicant confirmed he was aware of the contents of his application and that he did not have any updates or corrections to make.
When asked about his current relationship status, the applicant initially said he has a boyfriend who he has been together with for two and a half years and is living with, and that their relationship is registered. He then said have had a disagreement and the last two months he has been living elsewhere.
The applicant confirmed his father and siblings remain in Malaysia, and his mother passed away three years ago. The applicant speaks with his siblings once a month and his father once a week.
In relation to his previous addresses, the applicant lived in Penang until he was approximately [age] and then lived in Kuala Lumpur for almost three years after that and met his partner there. He then returned to Penang in 2017 to manage [Partner A’s business, Business 1] and lived there for approximately seven months. When asked where he lived, the applicant confirmed he lived with his family but spent a least one night per week at [Partner A’s] house.
In terms of his previous travel, the applicant gave evidence that he applied for his passport in 2016 because he wanted to go for holidays with [Partner A], and that they travelled to [Country 1, City 1 and Island 1] together for holidays.
The applicant first arrived in Australia at the end of 2017 and stayed until January 2018. He and [Partner A] then returned to Malaysia and remained there for two months until March 2018, when they returned to Australia together. When asked the reasons for his return trip, the applicant said his mother was unwell as she had [Medical condition 1] and he returned to look after her.
The applicant gave evidence that he and [Partner A] lived together after arriving in Australia and rented houses together in various areas in Sydney. The applicant then ended the relationship in 2022 and commenced living with his new partner, ‘Mr A’. He lived with Mr A until approximately two months ago, and is now living with Mr B, who also appeared as a witness during the Tribunal hearing.
When asked his reasons for fearing harm in Malaysia, the applicant said that when he was a teenager he used to play with a friend he knows and then he felt he was not safe in Malaysia because people were yelling or saying bad words and he felt uncomfortable living there. His family did not know he is gay, however, [Partner A] was always coming to his place and they made comments that he was close to him. His father did not like that they looked close and had a relationship together and he felt unsafe being there. He added that Syariah law is strong and in Malaysia they can go to jail for 20 years if they are caught.
When asked if he ever experienced harm in Malaysia in the past, the applicant responded there was no specific event.
In terms of his sexual identity, the applicant described himself as a ‘gay man’ and I have adopted the same language for the purposes of this decision. The applicant said he is ashamed to tell people he is gay but after he lived here for two to three years, he began to be more open about his sexuality. When asked what it meant to be gay to him, the applicant said he always liked men more than he liked girls and he has never had a relationship with a woman.
The applicant provided detailed evidence in relation to his past sexual relationships as a child and teenager, which was consistent with the information provided in his Departmental interview. The applicant gave a detailed account of the sexual encounters he experienced, which started when he was a child from a male adult known to his family and occurred approximately twice each month. This spanned from when the applicant was approximately [age] and continued until he was [age] and moved to Kuala Lumpur. The applicant explained that he would go to this individual’s house after school as he owned a shop next door to his mother’s and his mother was close with this person. The applicant gave detailed evidence in relation to how these encounters initially started and continued, which I have elected not to detail for the purposes of this decision. When asked how this made him feel, the applicant said he liked it and it made him feel that he was attracted to men. The applicant also said he was worried that if his family found out they would ‘vanish’ him as they were not allowed to do that in Malaysia because of Syariah law, and that he had to keep it a secret and felt bad about anyone finding out.
The applicant provided evidence in relation to a relationship he had when he was [age], with another boy from his school, who he referred to as ‘[Friend A]’. The applicant said that [Friend A] was the younger brother of the applicant’s friend. The applicant said this would occur in the evenings in his home after school as his parents were working and his siblings were either at school or helping their mother. The applicant gave clear evidence in relation to this relationship, including how it changed from a friendship to a sexual relationship. The applicant said this occurred approximately once a week until he was [age]. When asked why the relationship came to an end, the applicant said he thought it was not good to continue because this person had told his brother what they were doing, and although his brother did not do anything the applicant felt scared and ashamed.
When asked about his relationship with [Partner A], the applicant provided detailed evidence. The applicant’s evidence in relation to the inception and development of the relationship while in Malaysia was consistent with the evidence he provided during the interview with the delegate. The applicant explained to the Tribunal that although they met and commenced their relationship in Kuala Lumpur, the applicant then returned to Penang to manage [Partner A’s business] and [Partner A] visited once a week. The applicant would stay in [Partner A’s] apartment once a week while he was visiting. When asked if his family knew where he was, the applicant responded they knew as [Partner A] was also close with his family and his mother knew [Partner A]. When asked what his family knew about the nature of their relationship the applicant said his mother knew and she didn’t care. He said his siblings did not know, but that they made jokes about [Partner A] being the applicant’s ‘sugar daddy’ and looked at him in a way which made him feel uncomfortable and unsafe.
The applicant confirmed that there were three other employees when he was managing [Business 1] and they were friends from his village. When asked if the applicant experienced any past harm or if anything happened, the applicant said his friends were suspicious that they were in a relationship and started saying bad words such as calling him gay and saying ‘you can’t be like this’ and talking about their religion prohibiting men from being gay and that Prophet Mohammed would not accept the applicant as a Muslim if he was gay. The applicant said he did not respond and ignored this but he felt uncomfortable. When asked if anything else happened, the applicant said people talk behind your back and say bad words, but he ‘did not really have harm and just feels uncomfortable living there.’ When asked directly if he had experienced any threats or harassment the applicant said no. When asked how they conducted their relationship in Malaysia and if they had concerns, the applicant said he expressed his concern to [Partner A] about people finding out, and that he always tried to act normal and ‘not look too gay’ if they were walking together in public.

When asked what made the applicant and [Partner A] come to Australia together, he said he was stressed working at [Business 1] as his friends working there were saying he was gay and they brainwashed him to feel bad, and he felt uncomfortable living in Malaysia so [Partner A] had the idea to come to Australia.
As noted above, the applicant’s evidence was that he remained in a relationship with [Partner A] for four to five years and lived with him until approximately 2022. When asked why their relationship came to an end the applicant said in 2019 they were fighting a lot and then one day had a big fight because [Partner A] used the applicant’s [Social media 1] account to post a photo of the two of them together to show his family they are gay and in a relationship. During this time the applicant moved out for a period and [Partner A] was also communicating with the applicant’s mother and telling her the applicant was not living with him and was going out too much. The applicant then moved back in with [Partner A] some months later, and they recommenced their relationship until the applicant left their home in 2023 because they had been together for approximately ten years and he no longer had feelings for [Partner A]. Around the same time, the applicant started dating Mr A and commenced living with him approximately two months later.
In terms of the applicant’s expression of his sexual identity, the applicant gave consistent evidence throughout the hearing that he did not initially tell people or have friends from the LGBTQIA+ community because he felt shy about it when he first arrived in Australia. However, over the last few years he has met friends from the LGBTQIA+ community and now feels more comfortable telling people he is gay and feels more open about his sexuality. However, the applicant does not tell others within the Malaysian community that he is gay because they think it is not acceptable. While living with [Partner A], they did not tell their friends they were in a relationship, and although they may have suspected it, they did not tell them.
The Tribunal then took evidence from Mr B at the applicant’s request. Mr B’s evidence was vague and unhelpful. When asked about his knowledge of the applicant’s previous relationships, Mr B said he knew the applicant was in a relationship with a guy for a few years, that ‘it was up and down’ and he could not remember his name.
When asked how he would conduct himself if he returned to Malaysia, the applicant said it would be difficult as he cannot expose himself and can’t be a part of the LGBTQIA+ community. In relation to the harm he fears, the applicant said he would feel unsafe because of the people around, they will say something bad or harm him and he can’t go back because of this. When asked who would harm him, the applicant said his [siblings] if they find out. When asked why, the applicant said ‘because they hate it’ and they will say backwards things. The applicant also stated he might be forced to marry a woman as his siblings might find someone and pressure him, and he will be depressed. When the Tribunal observed that the applicant’s evidence was that he had a good relationship with his family the applicant said they will want him to have a family and children and he cannot do this.
Findings
Based on the applicant’s oral evidence, I accept the applicant identifies as a ‘gay man’, that he is attracted to men, and has only ever had relationships with men. I accept that the applicant engaged in sexual relationships with at least two men while in Malaysia and I note the applicant has provided consistent evidence about these two individuals both before the delegate and at the Tribunal hearing. Contrary to the delegate, I accept the applicant was in a genuine same-sex relationship with [Partner A] for approximately ten years particularly given I had the benefit of the applicant’s evidence in relation to the progression and eventual breakdown of the relationship after arriving in Australia. I have had regard to the evidence provided by the applicant in relation to the relationships since then, as well as the supporting evidence provided, and I accept the applicant entered into a relationship with another individual which lasted for over two years and with whom he lived. I accept the applicant actively seeks out relationships with other men, and based on the applicant’s evidence I consider he will continue to pursue relationships with other men in the future.
I accept the applicant’s evidence that he conducted his relationships in Malaysia in secret, that he was worried about getting caught, that he felt he was doing something wrong and that he experienced feelings of shame or felt ‘bad’ about it. I also accept that the applicant behaved discreetly when he was with [Partner A] in Malaysia and tried to ‘act straight’ when they were in public together.
In relation to the claimed past events, I accept the applicant’s friends and coworkers had suspicions about his relationship with [Partner A] and that they speculated about the relationship and made comments to the applicant teasing him, speaking about Islam, and implying that it was wrong to have a relationship with a man. I accept the applicant felt uncomfortable and unsafe as a result of these comments and this formed part of the impetus for his decision to leave Malaysia with [Partner A].
However, I do not accept the applicant experienced warnings or harassment based on his status as a gay man from village elders, or anyone else. In his protection visa application, the applicant claimed that in 2016 or 2016 people from his village threatened to report him to authorities for being gay and that he received threatening phone calls. At the hearing, I asked the applicant in several different ways if he had experienced past harm and the applicant responded he experienced comments from co-workers that made him uncomfortable and other than this he had not experienced harm. When I reminded the applicant later in the hearing of the claims set out in his protection visa application, the applicant then said he had harassment and bullying from society and he doesn’t get calls anymore and that’s why he feels like he will not be arrested but he can’t live there anymore because he feels uncomfortable. When I asked the applicant why he did not mention the threatening phone calls when we discussed past harm earlier in the hearing, the applicant said because he forgot. When I put to the applicant that he had also said in his application that people from his village threatened to report him to the authorities, in response the applicant said he did not think he mentioned that. Based on the applicant’s responses at hearing, I do not accept the applicant received threats from village members that he would be reported to the authorities due to being in a same sex relationship, or that he received any threatening phone calls. I consider these claims are false and were included in the protection visa application for the purposes of bolstering the applicant’s claims for protection.
I also do not accept the applicant left Malaysia due to fear of harm from his family members. I note the applicant gave evidence that his family made jokes about the nature of his relationship and referred to [Partner A] as his ‘sugar daddy’. I accept these jokes and comments caused the applicant to feel uncomfortable. However, I do not accept the applicant genuinely feared harm from his family members in circumstances where he returned to Malaysia with [Partner A] shortly after his initial arrival in Australia. I consider the applicant’s return to Malaysia to see his family, together with his partner at the time, is inconsistent with his claim that he feared serious harm from his family members due to his relationship with his partner.
I accept that the applicant is open about his sexuality since arriving in Australia and participates in the LGBTQI+ community in Australia. Based on the applicant’s evidence, I find he actively pursues relationships with men in Australia, and I consider he would continue to do so upon return to Malaysia.
Country information
I have had regard to the Department of Foreign Affairs and Trade Country Information Report[1] which relevantly indicates that as a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent.[2] 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.[3] The DFAT report acknowledges that successive Malaysian Prime Ministers have made anti-LGBTQIA+ statements. Most recently, in January 2023, Prime Minister Anwar said recognising LGBTQIA+ identities and behaviours ‘will not happen, and God willing under my administration this is not going to happen.’ In-country sources told DFAT that the environment for LGBTQIA+ people had not improved under the Anwar Government.[4]
[1] DFAT Country Information Report – Malaysia, 24 June 2024.
[2] Ibid, [3.126].
[3] Ibid, [3.127].
[4] Ibid, [3.129].
Noting that the applicant is of Malay ethnicity, the DFAT Report relevantly provides that while government stances on LGBTQIA+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and penal code offences.[5]
[5] Ibid, [3.128].
DFAT assesses that members of the LGBTQIA+ community are typically prosecuted under state-based syariah legislation rather than federal law and while the investigation of such offences is reasonably common, and prosecutions have occurred, successful prosecutions are rare.[6]
[6] Ibid, [3.131].
The overall assessment in the DFAT Report is that:
members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence.[7]
[7] Ibid, [3.147].
The current United States Department of State 2022 Country Report on Human Rights Practices: Malaysia[8] similarly reports that Malaysian law does not prohibit discrimination based on sexual orientation, gender identity or expression, or sex characteristics and does not recognize LGBTQI+ individuals, couples, or their families. LGBTQI+ persons reported discrimination in employment, housing, and access to some government services because of their sexuality.[9] The report further states that ‘observers reported violence against LGBTQI+ persons was common, and that police at times perpetrated and condoned such violence, including against individuals in custody.[10]
[8] US Department of State, 2022 Country Reports on Human Rights Practices: Malaysia.
[9] US Department of State, 2022 Country Reports on Human Rights Practices: Malaysia, 32.
[10] Ibid.
Does the applicant satisfy the refugee criterion for protection?
As detailed above, I am satisfied the applicant is open about his sexuality in Australia and actively participates in the LQBTQI+ community. I consider if the applicant were to return to Malaysia he would continue to actively seek out and engage in same sex relationships with men. I consider this renders the applicant vulnerable because he states that after cultivating a sense of safety in Australia where he can live openly, he would not be able to conform to gender norms, his sexual orientation is visible and the likelihood of being pursued by authorities is therefore increased.
Based on the country evidence above, I accept that societal attitudes mean there is a negative view of same-sex relationships and a strong social taboo in relation to LGBTQI+ issues among Muslims, which is reflective of the applicant’s experiences in Malaysia. LGBTQI+ persons face discrimination, stigma, threats, and violence which varies depending on their socioeconomic class, religion, place of residence, and how they present themselves. As stated above, I accept the applicant has experienced comments which could interpreted as threats in relation to being gay and Islam, teasing, and questions about his past relationships while in Malaysia, and that this made him feel unsafe and uncomfortable. He fears this will continue if he were to return to Malysia and stated at hearing he has an additional fear he will be forced to marry by family members.
Based on the applicant’s evidence and in light of the country information extracted above, along with my findings in relation to the applicant’s future conduct, I am satisfied that if the applicant were to return to Malaysia, he would face harassment in private and public spaces and there is a real chance he would be subject by society and his family to verbal abuse. I accept the applicant will face pressure to marry as a male of marriageable age and according to cultural norms. I accept the applicant’s evidence that he would not be able to withstand this pressure, and I also note that forced marriage is often used as a mechanism to control individuals’ sexuality or what is considered to be ‘unacceptable’ behaviour including the expression of LGBTQI+ sexual identities.[11] Based on the applicant’s expression of his sexuality since arriving in Australia, I do not consider the applicant would be able to hide his sexuality within his family and social circles and I accept this could act as a trigger for forced marriage. I am satisfied there is a real chance the applicant would be at risk of harm from harassment, violence, or being reported to the authorities if he lived openly as a gay man from his family members, co-workers, and from others in society. I also accept there is a real chance the applicant would face a forced marriage from his family members, which is a criminal offence in Australia, and would constitute serious harm. I consider the treatment the applicant is at risk of includes serious harassment that is systematic and discriminatory. It follows that there is a real chance that the applicant would suffer serious harm in the foreseeable future if he were to return to Malaysia.
[11] Federation of Ethnic Communities’ Council of Australia, ‘Forced Marriage in Australia: A Literature Review’, p 13.
I consider that the applicant will face a real chance of significant harassment and significant ill treatment in Malaysia, now or in the foreseeable future, and that the essential and significant reasons for that is his membership of a particular social group, being ‘gay men’ as defined under s 5L. This particular social group is defined by gender and sexual orientation. The characteristic of sexual preference and identity is shared by each member of the group and those characteristics being immutable characteristics. I find these characteristics are fundamental to the applicant’s identity or conscience. I find that the applicant should not be forced to renounce these characteristic and that the characteristics distinguish him from society. I find that the characteristic is not merely a shared fear of persecution. I am therefore satisfied the harm feared by the applicant is due to a refugee ground under
s 5J(1)(a).
I have considered DFAT’s assessment that the risks of harm are higher for Muslim LGBTQI+ individuals, as well as those who reside outside urban areas. I find that if the applicant returns to any area in Malaysia now or in the reasonably foreseeable future and lives openly as a gay man he will face a real chance of serious harm including being charged with a crime under the Penal Code or Syariah law, as well as societal violence and discrimination. Therefore, I find that the real chance of persecution relates to all areas of Malaysia.
I am satisfied that the persecution will be directed at the applicant for the essential and significant reason of his membership of a particular social group, it involves serious harm to him and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or ill-treatment of the applicant.
I have considered whether the applicant could modify his behaviour to avoid persecution, as required by s 5J(3), by concealing his sexual orientation. I accept that the applicant has modified his behaviour in the past to attempt to conceal his sexuality and was discreet in his relationships in Malaysia because he feared discrimination and harm. He has given evidence that over the past few years he has become open about his sexuality and is now comfortable with his sexual identity. I am satisfied that the applicant cannot take reasonable steps to modify his behaviour in future in order to avoid a real chance of persecution in Malaysia as this would require him to conceal innate or immutable characteristics, being his sexual orientation and identity.
Considering the country information set out above, I am also not satisfied there are effective protection measures available to the applicant in Malaysia as set out in ss 5J(2) and 5LA, such as seeking assistance or protection from the Malaysian police. I find that the persecution the applicant fears could come from government authorities themselves and the applicant cannot seek effective protection against this. I also note that information from the UK Home Office ‘Country policy and information note’ on Malaysia states it would be ‘unreasonable to expect a person identifying as LGBTI to seek protection from the Malaysian authorities’ and that in general, the Malaysian state appears able but unwilling to offer effective protection and so the person will not be able to avail themselves of the protection of the authorities.[12] It follows from this that I find that effective protection measures are not available to the applicant if he were to return to Malaysia.
[12] United Kingdom Home Office, Country policy and information note: sexual orientation and gender identity or expression, Malaysia, July 2024 at 2.5.4.
In accordance with s 36(3) of the Act where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right. In this case, there is no evidence to suggest that the applicant has any right to enter and reside in any other country, and therefore I find that s 36(3) does not apply in the circumstances of this case.
Based on the totality of the evidence before the Tribunal, for the reasons given above, I am satisfied that the applicant has a well-founded fear of persecution if he returns to Malaysia in the reasonably foreseeable future.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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