2202365 (Refugee)

Case [2025] ARTA 1703

2202365 (Refugee) [2025] ARTA 1703 (9 July 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:Minister for Immigration and Citizenship

Tribunal Number:  2202365

Tribunal:General Member A Hirsch

Date:9 July 2025

Place:Melbourne

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.

Statement made on 09 July 2025 at 3:57pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – LGBTI – religion – Muslim – no hearing required – beaten and disowned by family – harassment, discrimination, intimidation and threats by friends, employers and community – fears being killed or physically assaulted by community –Syariah law – decision under review remitted

LEGISLATION

Administrative Review Tribunal Act 2024 (Cth), ss 9, 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

AKA24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1434
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Applicant A v MIEA (1997) 190 CLR 225
Applicant NABD of 2002 v MIMIA [2005] HCA 29
Applicant S v MIMA (2004) 217 CLR 387
Case X, Y and Z v Minister Voor Immigratie, Integratie En Asiel (C‑199/12, C‑200/12 and C‑201/12)
Chen Shi Hai v MIMA (2000) 201 CLR 293
MMM v MIMA (1998) 90 FCR 324
Refugee Appeal No. 74665/03 [2005] INLR 68 (N.Z.)
S395/2002 v MIMA (2003) 216 CLR 473, 490; [2003] HCA 71
SGKB v MIMIA [2003] FCAFC 44
Toonen v Australia [1994] CCPR/C/50/D/488/1992 8.2

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

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 February 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant who claims to be a national of Malaysia applied for the visa on 3 September 2018. The applicant claims to fear harm as a homosexual Muslim man in Malaysia. The delegate of the Minister accepted that the applicant identifies as a homosexual man, but found that the risk of prosecution under Malaysian criminal law for sodomy and oral sex did not reach the level of a real chance. As such, the delegate refused to grant an applicant a protection visa because they were not satisfied the applicant is a person in respect of whom Australia has protection obligation. 

  3. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024…

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2202365 (Refugee) [2025] ARTA 1703
Case
[2025] ARTA 1703
Decision Date

CaseChat Overview and Summary

The matter before the Tribunal involves an applicant from Malaysia who is seeking a protection visa on the basis of his sexual orientation. The Tribunal was required to determine whether the applicant has a well-founded fear of persecution for reasons of membership of a particular social group, specifically homosexuals in Malaysia. The Tribunal also had to consider if the applicant would face a real chance of significant harm, as defined under the Migration Act, if returned to Malaysia.

The legal issues before the Tribunal included whether the applicant's fear of persecution was well-founded and whether there were effective protection measures available to him in Malaysia. The Tribunal had to consider the existence of laws criminalising same-sex relations, the societal and familial discrimination the applicant faced, and the increasing trend of 'Islamification' in Malaysia. Additionally, the Tribunal examined whether the applicant could reasonably be expected to modify his behaviour to avoid persecution.

The Tribunal found that the applicant's fear of persecution was well-founded, based on the existence of laws criminalising same-sex relations in Malaysia and the applicant's experiences of harassment, discrimination, and threats due to his sexual orientation. The Tribunal concluded that the real risk of prosecution and significant harm extended to all areas of Malaysia. Furthermore, the Tribunal held that the applicant could not be expected to modify his behaviour in a way that would conflict with his fundamental identity. Consequently, the Tribunal determined that the applicant met the criteria for a protection visa under the Migration Act.

The Tribunal set aside and remitted the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies the refugee criterion under section 36(2)(a) of the Migration Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

As such, the Tribunal decided not to hold a hearing and to decide the matter wholly in favour of the applicant.BACKGROUNDEvidence before the Department The applicant gave substantial evidence relating to his sexual orientation to the Department. This included his protection claims in this initial application, a further statement to the department regarding his family background and experiences of harm as a homosexual man, Malaysia’s treatment of LGBTI people, and evidence of threats and harassment on social media based on his sexual orientation. In his interview with the Department, the applicant described when he first came to realise his sexual orientation, his experience coming out to his family and friends, his previous homosexual relationships, discrimination he faced, and the harm he fears in Malaysia because of his sexual orientation. The delegate accept that the applicant identified as a homosexual man but found that while ‘Malaysia’s Penal Code criminalises sodomy (homosexual) and oral sex (homosexual and heterosexual) acts, authorities rarely enforce the law.’ The delegate refused to grant the applicant a visa on the basis that they were not satisfied there is a real chance the applicant would face prosecution from authorities on account of his membership of a particular social group, namely ‘homosexuals in Malaysia’, now or in the foreseeable future. The delegate also found that ‘the official, societal and familial discrimination the applicant may face on account of his membership of a particular social group, namely ‘homosexuals in Malaysia’, would not reach the threshold to constitute persecution.’ As such, the delegate found that the applicant is not a refugee as defined in s5H(1) and they do not satisfy the criterion in s36(2)(a) of the Act. The delegate also found that there is no real risk that the applicant will suffer significant harm as per s36(2)(aa) of the Act.Evidence before the Tribunal The applicant applied for a review of the delegates decision on 22 February 2022. On 29 May 2025, the applicant provided additional supporting documents, including:·Screenshots of the applicant on video call with another man·Screenshots of text messages with other men, with accredited translations attached.·Receipts for payments to ‘[Dating app 1]’.·Screenshots from the ‘[Dating app 1]’ and ‘[Dating app 2]’ dating apps.·Screenshots showing that the applicant spends multiple hours on ‘[Dating app 2]’ and ‘[Dating app 1]’ dating apps each day.·Accredited translation of threats made on social media to the applicant. On 30 May 2025, the applicant provided a statutory declaration, signed 30 May 2025. On 6 June 2025, the Tribunal informed the applicant that the hearing scheduled for 17 June 2025 had been cancelled, and the Tribunal will made a decision wholly in favour of the applicant as per s 106(3) of the ART Act.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant claims to be a citizen of Malaysia. The applicant provided a copy of his passport to the Department. The Department accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the application for protection.

Evidence

Evidence Before The Court

On 6 June 2025, the Tribunal informed the applicant that the hearing scheduled for 17 June 2025 had been cancelled, and the Tribunal will made a decision wholly in favour of the applicant as per s 106(3) of the ART Act.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant claims to be a citizen of Malaysia. The applicant provided a copy of his passport to the Department. The Department accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the application for protection. The Tribunal accepts that the applicant is a citizen of Malaysia which is also his receiving country for the purposes of refugee and complementary protection assessments. The Tribunal accepts that the applicant identifies as a homosexual man. The applicant gave detailed evidence to the Department and the Tribunal about when he first started to understand his sexual orientation at the age of 12. The applicant also provided evidence of his experience coming out to his family at the age of 16, who beat him, disowned him, kicked him out of their house and cut him off financially. The applicant also provided evidence of harassment, discrimination, intimidation and threats made by others in Malaysia, including friends, employers and others in the community. Since living in the Australia, the applicant has been on dates with men, has used online gay dating platforms such as [Dating app 2] and [Dating app 1] and has maintained a long-distance relationship with an Indonesian man for more than 2 and a half years. The applicant stated that he fears returning to Malaysia because he will be persecuted for his sexual orientation. He explained that he may be killed or physically and violently assaulted by others in the Muslim community. He also fears being targeted and prosecuted by the Malaysia authorities under Malaysian penal law and Syariah law. The applicated stated that he cannot live ‘under the radar’ in Malaysia, because it will only be a matter of time before someone finds out that he is gay. He also stated that if he returns to Malaysia he will become distressed and miserable if he is forced to hide his sexual orientation. The applicant stated that he wants to live as himself as a gay man and have a ‘peaceful and quiet life’ but this cannot happen in Malaysia. The delegate found that the applicant is homosexual:the applicant’s claimed self-realisation of his sexuality to be coherent and plausible, particularly in light of country information which indicates religious and cultural taboos against same-sexual conduct are widespread in Malaysia. Further, the applicant was forthcoming with information and provided substantiating details spontaneously. Similarly to when discussing his self-realisation of his sexuality, the applicant answered questions spontaneously with sufficient details. The Tribunal also accepts the applicant’s claim to be a homosexual Malay Muslim man, and also accepts his claims of past harm on the basis of his sexual orientation. REASONS AND FINDINGS

Decision

Reasons for decision

The fact that Malaysia’s criminalisation of same sex relations remains on the statute books, even if such enforcement has been rare in the past, demonstrates that there is a real risk that prosecution may occur in the future. If the Malaysian authorities were indeed sincere in their intent to not prosecute homosexuals for such crimes, they would remove such laws. However, the very existence of the laws give rise to a real chance of harm in the foreseeable future. This is especially likely with the increasing rise of ‘Islamification’ in Malaysia, as noted in the most recent DFAT Country Report.[22][22] ‘DFAT Country Information Report: Malaysia’, DFAT, 24 June 2024, available at >As such, the Tribunal also finds that there is a real chance the applicant would suffer serious harm in the form of prosecution under Malaysian penal law for homosexual relations in the reasonably foreseeable future, if returned to Malaysia.CONCLUSIONFor the above reasons, the Tribunal is satisfied that the applicant has a well-founded fear of being persecuted in Malaysia. It accepts that the harm he is at risk of suffering would involve ‘serious harm’ as required by s 5J(4); that it would include ‘systematic and discriminatory conduct’, as it would be deliberate and intentional and would involve his selective harassment, for the essential and significant reason of his membership of the particular social group of homosexual men, as required by ss 5J(1) and (4). As such laws exist at both the federal and state levels, the real chance of serious harm and lack of effective protection measures extends to all areas of Malaysia, as required by s 5J(1)(c).Section 5J(3) provides that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in a receiving country. However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic. As per S395,[23] ‘a person claiming harm as a refugee because of a central part of their personal identity (such as their sexuality or political opinion) should not be denied protection because they are seen to have the “option” of hiding that part of their identity. Hence, it should not be assumed, for example, that a lesbian or gay male can avoid harm by acting “discreetly” – a finding which is in and of itself harmful to the individual.’[24] As such, the Tribunal is satisfied that the applicant cannot be expected to modify his behaviour in order to avoid persecution.[23] [2003] HCA 71.[24] AKA24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1434 [67].For these reasons, the Tribunal finds the applicant is a refugee as defined by s 5H and is a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a). DECISIONThe 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.APPENDIX 1 - RELEVANT LAW Criteria for protection visaThe 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 considerationsIn 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.ATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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