2202365 (Refugee) - [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

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).
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.
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 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
Section 106(3) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) provides that a decision can be made without holding a hearing if: ‘the only parties to the proceeding are the applicant and a non - participating party to the proceeding or the hearing of the proceeding; and…the decision is wholly in favour of the applicant…and it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
The delegate of the Minister accepted that the applicant identifies as a homosexual man. Based on the applicant’s evidence before the Department and the Tribunal, and his interview with the Department, the Tribunal has also accepted that the applicant identifies as a homosexual man. As such, the Tribunal decided that it did not need to hear oral evidence from the applicant before the Tribunal, as it could determine the issues in the absence of a hearing, and make a decision wholly in favour of the applicant.
In considering whether to hold an oral hearing, the Tribunal considered the objectives of the ART as set out in s 9 of the ART Act. It provides that ‘applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits’ and is ‘accessible and responsive to the diverse needs of parties to proceedings.’
The Tribunal also considered best practice in terms of a trauma-informed approach, noting that it was not necessary for the Tribunal to create further stress or anxiety for the applicant in recalling his sexual orientation and past experiences if the Tribunal is able to accept his claims based on the documents already before it.
As such, the Tribunal decided not to hold a hearing and to decide the matter wholly in favour of the applicant.
BACKGROUND
Evidence 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.
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
As the DFAT Country Information notes, Malaysian penal law criminalises same-sex relations:
3.126 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. The Malaysian Penal Code defines ‘carnal intercourse against the order of nature’ as involving the introduction of the penis into another person’s anus or mouth (to the point of penetration). Oral heterosexual sex performed upon a man is also an offence, although DFAT is not aware of any prosecutions for this act; oral sex performed upon a woman is not an offence.
3.127 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.[1]
[1] ‘DFAT Country Information Report: Malaysia’, DFAT, 24 June 2024, available at >
While the delegate accepted that the applicant is a homosexual man, they found that the risk of prosecution under Malaysia’s criminal laws does not reach the level of a real chance of persecution. They held, among other things, that:
Given authorities rarely enforce the law regarding sodomy and oral sex under the Penal Code; the limited number of prosecutions reported under Syariah law for same-sex relations…and, that he was never mistreated by the authorities in the past, I am 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.
With respect to the Delegate, the Tribunal disagrees with this finding.
Under s 5J(1)(a)) the Migration Act 1958, to establish persecution, amongst other criteria, a decision-maker must be satisfied that the reason for persecution must be the essential and significant reason, the persecution must involve serious harm to the person; and the persecution must involve systematic and discriminatory conduct.[2]
[2] Section 5J(4)(a)-(c) of the Act.
In certain circumstances, state persecution may be established if a law in question is discriminatory or is applied in a discriminatory way towards a person or a group of persons for a refugee reason. Under the Convention, it is well-established that whether or not the discriminatory treatment constitutes ‘persecution’ depends on whether the treatment is appropriate and adapted to achieving some legitimate object of the country concerned.[3] A legitimate object will ordinarily be an object that needs to be pursued in order to protect or promote the general welfare of the state and its citizens. As such, a law or its purported enforcement will be persecutory if its real object is not the protection of the state but the oppression of members of a race, religion, nationality, social group or political opinion.[4]
[3] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chen Shi Hai v MIMA (2000) 201 CLR 293 at [28]; Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [45]. In Applicant S v MIMA (2004) 217 CLR 387, Gleeson CJ, with Gummow and Kirby JJ held that as a matter of law to be applied in Australia, these criteria are to be taken as settled.
[4] While these principles were developed in consideration of the Convention it also appears applicable to the concept of ‘persecution’ in ss 5H(1) and 5J of the Act. The Explanatory Memorandum to the Bill which introduced those sections does not suggest an intention to displace the principles, and the Department’s view is that these principles continue to apply in the context of assessing ss 5J(4)(a) and (c). See Department of Home Affairs, Refugee Law Guidelines, section 3.10.4, as re-issued 27 November 2022.
In this case, Malaysian laws which criminalise same-sex relations are discriminatory and persecutory towards homosexuals. In MMM v MIMA (1998) 90 FCR 324, Madgwick J considered the application of a general criminal law against ‘unnatural acts’ to homosexual in Bangladesh. His Honour held that enforcement of a law of that kind could constitute persecution of homosexuals:
In some circumstances, the existence of the law, provided it seems likely to be enforced, even though the actual enforcement may not be selective, may indicate that the legislature as well as the executive of the country in question, was intending serious harm to a particular social group. A law of the kind in question here, although generally expressed to apply to anyone who commits certain acts considered to be “against the order of nature”... is in reality targeted at homosexuals ... Ordinarily, homosexuals would constitute a social group and the law is targeted at them as such … Such a law, although in form one of general application, is in substance one of selective harassment. … If a criminal law, though generally expressed, is in the judgment of a competent Australian tribunal, in reality, nevertheless targeted at a “particular social group”, that may, depending on the general character of the law, its severity and the actual prospects of enforcement of it, suffice: [330-331].
Therefore, where the law is general on its face but has a discriminatory intent (such as Malaysia’s penal code), it is clear that the making of the law and its enforcement constitutes the relevant discriminatory conduct and is evidence of the relevant Convention-related/s 5J(1)(a) motivation.
However, even if these laws are rarely enforced, the mere presence of the laws can directly amount to persecution.
Unenforced persecutory laws may amount to persecution
Laws which criminalise same-sex relations, even if rarely enforced, can amount to persecution under s5J of the Act. Hathaway and Foster note that ‘While the lack of enforcement will mean that there is no real chance of suffering the (illicit) penal sanction, the existence of the law may nonetheless be relevant to the existence of a well-founded fear of a different persecutory harm.’[5] This is because the presence of the laws on the statute books may cause psychological harm and social stigma, may cause LGBTI persons to live in hiding ‘under the shadow’ of the law, violate their right to privacy, may embolden non-state actor to persecute LGBTI people, and demonstrate an unwillingness of the state to provide protection. Further, the fact that such laws have rarely been enforced in the past does not mean there is no chance they will not be enforced in the future, especially as the authorities continue to maintain these laws.
Criminalisation causes psychological harm and social stigma
[5] James C Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, Second edition, 2014) 130.
Amnesty International and the International Commission of Jurists note that:
laws that criminalise same-sex sexual activity – even when they are not enforced – have the effect of humiliating, debasing and dehumanising people who are, or are suspected of being, lesbian, gay, bisexual, transgender or intersex (LGBTI), causing serious psychological harm in turn. Such laws stigmatise individuals simply because of who they are or what others may think of them, and in turn cause psychological damage, injury to self esteem and social marginalisation.[6]
[6] Amnesty International and International Commission of Jurists, ‘Observations by Amnesty International and the International Commission of Jurists on the Case X, Y and Z v Minister Voor Immigratie, Integratie En Asiel (C‑199/12, C‑200/12 and C‑201/12) Following the Opinion of Advocate General Sharpston of 11 July 2013’.
Such laws go the heart of a person’s self-identity and self-worth. They essentially paint all LGBTI persons as criminals, simply for who they love. Criminal laws are both normative and punitive. ‘They tell society what is acceptable and tell individuals what is not acceptable – they operate as a legal and social imperative not to do something, or, to be someone and license society to express its disapproval through stigmatisation, prejudice and discrimination.’[7]
[7] Ibid.
Laws criminalising homosexuality can cause shame, damage to self-esteem, fear and psychological damage, and ultimately ‘eat away at a person’s human dignity, personality and therefore humanity.’[8] Such laws may cause LGBTI persons to repress their true identity, such as by concealing their sexual identity in order to avoid detection by the state and the community. This may cause psychological harm, feeling of worthlessness, depression, anxiety and even cause self-harm.
[8] Ibid.
The Full Federal Court has held that living under the shadow of the mere possibility of a death sentence for apostasy in Iran, regardless of how remote that possibility might be, could itself constitute persecution. The Court noted that the Tribunal ‘ought to have considered whether or not the mere possibility of a death sentence, regardless of how remote that possibility might be, could itself constitute persecution. In our view, to live under the shadow of such a threat might well do so.’ [9]
[9] SGKB v MIMIA [2003] FCAFC 44 at [21], endorsed by Kirby J in Applicant NABD of 2002 v MIMIA [2005] HCA 29 at [94].

While psychological harm is not listed as an example of serious harm under s 5J(5), this provision in non-exhaustive, and it is open to the Tribunal to consider what constitutes serious harm with reference to the view of the courts, eminent jurists and other experts. As noted by Gleeson CJ in the S395, ‘in such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. .’[10] As Hathaway and Pobjoy note, the Court’s reference to ‘menacing implications’ ‘signals their awareness that the applicants’ psychological response is the real persecutory harm’.[11] They note that
The view that psychological harm constitutes cognizable persecutory harm sits comfortably with international human rights law jurisprudence, and with the domestic jurisprudence of courts in the common law world. Moreover, it is surely intuitively right that the “menacing implications” that self-repression will likely have on the psyche are legitimately the concern of refugee law.[12]
[10] S395/2002 v MIMA (2003) 216 CLR 473, 490.
[11] Hathaway, James C and Jason Pobjoy, ‘Queer Cases Make Bad Law’ (2012) 44 International Law and Politics, 349.
[12] Ibid 358-9.
In the present case, the applicant spoke about the impact that such laws have had on him. In his protection visa application, the applicant notes that:
I did not feel comfortable appearing in public because the local authority has the right to question my sexuality more so as Malaysia has its own rules on LGBTs. LGBTs could be jailed, fine or caned. All these threats, condemnation and uncomfortable feeling happened as Malaysia is a Muslim country where the Syariah's Law does not allowed LGBTs like me to live freely.
In his additional statement to the Department, the applicant states that:
Thus referring to the acceptance of family, community culture and law in Malaysia it is proven that if I return to Malaysia I will be more distressed and miserable in terms of emotional, mental and legal.
As such, the Tribunal finds that there is a real chance the applicant would face serious harm in the form of psychological harm by being forced to live in fear of punishment causing him psychological distress that rises to the level of serious harm, as per s 5J of the Act.
Criminalisation interferes with the right to privacy
The continuing existence of laws which criminalise same-sex relations, even if not enforced, also arbitrary interferes with people’s rights to privacy. This is because criminal laws interfere and control what a person can do in the privacy of their own homes and own lives, regardless of whether they are enforced. In Toonen v Australia, the UN Human Rights Committee held that Tasmania’s criminalisation of homosexual relations violated Article 17 of the International Convention on Civil and Political Rights, even if such laws had not been enforced for over a decade:
The Committee considers that sections 122 (a) and (c) and 123 of the Tasmanian Criminal Code "interfere" with the author's privacy, even if these provisions have not been enforced for a decade…The continued existence of the challenged provisions therefore continuously and directly "interferes" with the author's privacy.[13]
[13] Toonen v Australia [1994] CCPR/C/50/D/488/1992 8.2.
Likewise, the New Zealand Refugee Status Appeals Authority in Refugee Appeal No. 74665/03 found that returning an applicant back to Iran, which provides punishments of the death penalty and flogging for same-sex relations, would violate an applicant’s right to ‘a meaningful private life’, and thereby constituted persecution. This decision was not based on the risk of the criminal punishment, but rather the fact that the applicant would be forced to conceal his sexual identity in order to avoid such punishment, thereby violating his right to privacy, a core norm of international human rights law.[14]
[14] Refugee Appeal No. 74665/03 [2005] INLR 68 (N.Z.).
In the present case, the applicant has stated that ‘I want to be myself as a gay (LGBT) and have a peaceful and quiet life but this cannot happen in my home country.’ The Tribunal notes that Malaysia’s criminalisation of same-sex relations clearly interferes with the applicant’s right to privacy, even if they are not enforced, because they control what consenting adults may do in their private lives. While such violation of the right to privacy may in some cases amount to serious harm under s 5J of the Act, the Tribunal does not need to consider this is the present case.
Criminalisation emboldens non-state actors
Laws which criminalise same sex relations, even if rarely enforce, also embolden community members and non-state actors to commit harm against LGBTI people. The High Court in S395 held that:
Even where a law such as s 377 is not enforced, however, there may be a real chance that a homosexual person will suffer serious harm – bashings or blackmail, for example – that the government of the country will not or cannot adequately suppress… If the harm is inflicted for a Convention reason and is serious enough to constitute persecution, the homosexual person is entitled to protection under the Convention.[15]
[15] S395/2002 v MIMA (2003) 216 CLR 473, 491.
UNHCR’s Guidelines on Sexual Orientation note that
Even if irregularly, rarely or ever enforced, criminal laws prohibiting same-sex relations could lead to an intolerable predicament for an LGB person rising to the level of persecution. Depending on the country context, the criminalization of same-sex relations can create or contribute to an oppressive atmosphere of intolerance and generate a threat of prosecution for having such relations. The existence of such laws can be used for blackmail and extortion purposes by the authorities or non-State actors. They can promote political rhetoric that can expose LGB individuals to risks of persecutory harm. They can also hinder LGB persons from seeking and obtaining State protection.[16]
[16] United Nations High Commissioner for Refugees, ‘Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees’ < (‘Guidelines on International Protection No. 9’).
Amnesty International and the International Commission of Jurists argue that:
Equally, these laws enable non-state actors to persecute with impunity LGBTI individuals, or people who are perceived to be LGBTI. Indeed, laws that criminalise same-sex sexual activity in some countries, even if infrequently or not at all enforced in recent years, contribute to an atmosphere of state-supported homophobia and serve as both the motivation and justification for harassment, extortion and physical abuse of LGBTI and/or other gender non-conforming individuals by non-state actors…[17]
[17] Amnesty International and International Commission of Jurists, ‘Observations by Amnesty International and the International Commission of Jurists on the Case X, Y and Z v Minister Voor Immigratie, Integratie En Asiel (C‑199/12, C‑200/12 and C‑201/12) Following the Opinion of Advocate General Sharpston of 11 July 2013’.
In this case, the applicant has outlined a range of threats, harassment, intimidation and discrimination from members of the community because he is gay, or perceived to be gay. The applicant provided evidence of threats made against him on social media in Malaysia, and incidents of harassment and intimidation in the community.
Because of the presence of such laws in the Malaysian penal code, the applicant cannot receive adequate protection from state authorities for these harms. As Amnesty International and the International Commission of Jurists note:
protection is neither effective nor available when laws criminalising consensual same-sex sexual relations or acts exist - even when they are not enforced - because the individuals who need protection would effectively be outing themselves to the authorities should they decide to seek protection from them.[18]
[18] Ibid.
As such, the Tribunal also finds that there is a real chance the applicant would suffer serious harm from members in the community in the reasonably foreseeable future, if returned to Malaysia.
Real chance of prosecution in the future
The High Court’s decision in Chan establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%. Indeed, the High Court has prescribed a low threshold for determining whether an applicant’s fear is ‘well-founded’ and it can be reached even if the event feared is ‘unlikely to occur’ and has only a ‘10 per cent chance’ of occurring. However, the chance of it occurring must be more than ‘far-fetched’ or ‘remote’, and the evidence must indicate ‘a real ground for believing that the applicant … is at risk of persecution’. A fear ‘is not well-founded if it is merely assumed or if it is mere speculation.’[19] The courts have made it clear that ‘proving persecution in the past is not an essential step in an applicant demonstrating that he or she has a well-founded fear of persecution.’[20]
[19]Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.
[20] Abebe v Commonwealth (1999) HCA 197 CLR 510 [192].
Amnesty International and the International Commission of Jurists argue that ‘the existence of such laws, including in countries where the relevant penal provisions have not been recently enforced, gives rise to a sufficiently real risk that such provisions may be enforced in the future.’ [21]
[21] Amnesty International and International Commission of Jurists, ‘Observations by Amnesty International and the International Commission of Jurists on the Case X, Y and Z v Minister Voor Immigratie, Integratie En Asiel (C‑199/12, C‑200/12 and C‑201/12) Following the Opinion of Advocate General Sharpston of 11 July 2013’.
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.
CONCLUSION
For 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).
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.
APPENDIX 1 - RELEVANT LAW
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.
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.
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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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