2202726 (Refugee) - [2025] ARTA 694

2202726 (Refugee) [2025] ARTA 694 (3 January 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2202726
Tribunal:Senior Member S Thode
Date of Decision: 3 January 2025

Place:Sydney
Decision: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Senior Member S Thode

Statement made on 3 January 2025 at 11.51 am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual woman – masculine presentation – bullied by sisters, restricted by family and assaulted – found by family after relocating with girlfriend, and girlfriend assaulted – fear of denunciation, official punishment or forced marriage – new relationship with woman from another country, currently in that country – country information – federal law rarely enforced – state syariah laws – modification of behaviour impermissible and real chance of persecution applies to all areas of country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (3)(c)(vi), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
Appellant S395/2002 v MIMA (2003) 216 CLR 473
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 28 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 be a Malaysian national applied for the visa on 17 September 2018. The delegate refused to grant the visa on the basis that although he accepted that the applicant identifies as a lesbian, the delegate found that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s36(2)(b) and s36(2)(c) of the Act.
The applicant appeared before the Tribunal on 3 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant was not represented at the review.
CLAIMS AND EVIDENCE
Evidence before the Department
The applicant lodged a protection visa application on 17 September 2019. The claims made in the application form and as set out by the delegate are as follows:
·The applicant is a lesbian and she is always bullied by her siblings because of her “character”;
·Her family forced her to be a “perfect woman” and to “follow [their] religion” which meant that a woman cannot be married to another woman;
·The applicant’s family locked her up when they found out she had a girlfriend and they did not allow her to hang out with anyone, not even her friends;
·The applicant therefore ran away to another state with her girlfriend but her girlfriend’s family also found them after a few months and “hit” the applicant, warning her to stay away from their sister and threatening to report her to the police for being a lesbian;
·Fearful of being found by her family and being locked up again in the house, the applicant therefore decided to “run away” from Malaysia;
·The applicant also fears she will be forced to marry a man against her wishes if she returns to Malaysia;
·The applicant claims she has experienced harm in Malaysia as her government has banned anyone who is homosexual, bisexual or transsexual and threatened such people with punishments such as fines, imprisonment and corporal punishment;
·The applicant claims she is always insulted by the community;
·The applicant did not seek help as there is no help for people like her in Malaysia given lesbians have been lashed in her country;
·The applicant did not therefore feel safe in her country;
·She has been trying to move to another country with her girlfriend but her girlfriend’s family have hit her and warned her and stopped her from seeing her girlfriend;
·She does not think the authorities can and will protect her as they are the ones who take legal action against lesbians.
Supporting Documents
The applicant provided no further documents in support of her application for a protection visa. However, the applicant did show the Tribunal several text messages from a person she identified as her girlfriend, [Ms A], who is currently residing in [Country], who will be referred to further below in these reasons for decision.
The Interview
The applicant attended an interview with the delegate of the Minister for Home Affairs for the purposes of s 65 of the Act on 18 January 2022.
The Tribunal has been provided with a sound recording of that interview and the interview has been considered.
Summary of the delegate’s decision
The delegate accepted the applicant’s claims that she identifies as a lesbian but found the applicant can continue to live and subsist in Malaysia as a lesbian and can enter into lesbian relationships in the same manner which she has in the past when living in Malaysia, albeit discreetly due to societal mores and expectations. The delegate acknowledged the applicant may experience some societal and official discrimination from time to time and that the societal environment there may not be as liberal and accepting of LGBTQIA+ individuals as it is across much of Australia, but was not persuaded the less-than-liberal environment or extent of discrimination and verbal abuse that the applicant may experience in Malaysia for being a lesbian would reach the threshold of serious harm to constitute persecution.
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 her being a Muslim lesbian in Malaysia.
The delegate found that he 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 her being a Muslim lesbian in Malaysia. The delegate concluded that the applicant did not claim to fear harm in Malaysia for any other s5J(1)(a) reason and no other reason was apparent to the delegate on the face of the information provided.
The delegate found that there is no real chance of persecution for one or more of the reasons mentioned in s5J(1)(a) in the receiving country. Therefore, the delegate concluded that the applicant is not a refugee as defined in s5H and the criterion in s36(2)(a) of the Act is not satisfied for this reason.
Evidence before the Tribunal
The applicant provided a written pre-hearing form to the Tribunal and the applicant provided additional information in support of her claims:
- I'm LESBIAN person who wants protection from my country.
- LGBT is against the teaching of ISLAM and MALAYSIA LAW.
- Socializing is limited because I can't hug, hold hand or kiss in public.
- My FAMILY also looked askance to me.
- On my age i also got forced to marry because I'm women and a MUSLIM.
- I FEEL pressured by the situation and not free to do want I want.
- At my current age, it's hard for me to find a good job in my country to cover daily living costs.
- I like living in Australia because of the equal treatment, Human rights are guaranteed regardless Male, Female, Gay or Lesbian.
- I need shelter and job in Australia to support my daily life forever
- I also want to do freedom that I can have here (Australia) compared to my home Country.
- This Country is more careful to help people in helping people in jobs, that's why I want to live here (Australia) and have a good life even though I'm Lesbian.
- Since living here, my soul is calmer and free.
- Now, I got a job once with a tax Deduction, and I hope to get this opportunity and serve this County.
The evidence given at the hearing
The applicant arrived in Australia on 11 August 2018 on a subclass 601 Electronic Travel Authority visa granted on 3 July 2018.
Shortly thereafter the applicant applied for a protection visa. The claims she made in the protection visa are the claims for protection she repeated during the interview before the delegate and again, in sworn evidence before the Tribunal. The Tribunal accepts the following claims and accounts of her past as truthful.
The applicant decided to travel to Australia to get away from her family who do not accept the applicant as a lesbian woman and according to the applicant wanted to “lock her up or change her”.
She was told by a friend about a protection visa and applied on 17 September 2018. In her claim for a protection visa the applicant claims that she has experienced harm in Malaysia as the government has banned anyone who is homosexual, bisexual or transsexual and threatened such people with punishments such as fines, imprisonment and corporal punishment. The applicant claims that she is insulted by the community. The applicant claims that she cannot seek help as there is no help for people like her in Malaysia given that lesbians have been lashed in her country. The applicant therefore did not feel safe in her country. She has been trying to move to another country with her girlfriend but her girlfriend’s family have hit her and warned her and stopped her from seeing her girlfriend. She does not think the authorities can and will protect her as they are the ones taking legal action against lesbians.
The applicant confirmed the information provided in the application form. She is a Muslim woman of Malaysian ethnicity who was born in Tawau, Sabah, Malaysia. The applicant confirmed that her father was [Mr B], although the applicant stated that her father has passed away when she was about [age] years old. Her mother [Ms C] still resides in Tawau with one of her sisters, [Ms D]. The applicant states her two brothers also reside in Tawau, although with their own families. The applicant only rarely speaks to her mother, and is in contact only sporadically through her sister. She stated that she cannot contact her mother directly because she and her mother fell out over the applicant being a lesbian. The last time the applicant spoke to her mother was about three months ago. When she was asked why she does not speak to her mother more often, the applicant became emotional and explained that her mother does not accept her as a lesbian woman but wants her to return to Tawau and live a regular life as a straight person. The applicant says that she cannot go back to live with her family as she fears that they will not accept her and try to change her. The applicant denied fearing physical harm from her family.
The applicant gave evidence that she worked for a number of [companies] between 2014 and 2016 and has otherwise a chequered work history that she cannot recall very clearly. She worked in various factories in Johor as well as in [Country] and Kuala Lumpur. The applicant confirmed that she found it difficult to sustain herself. The applicant was asked about her work history in [Country]. The applicant had been evasive with the delegate about travel to [Country] and her reasons for travelling there. The applicant stated that she was employed to bring boxes from Malaysia to [Country] and that she initially did not know that she was transporting [products]. The applicant got caught and “got into trouble’ and stopped the trips to [Country]. The Tribunal formed the view that the applicant was frank with her account of past events and, as stated above, finds that she is a witness of truth who does not embellish past events.
The applicant states that she was raised as a Muslim woman and that she still “respects” Muslims and the religion which is one of the reasons it is difficult for her to live openly as a lesbian in Malaysia. The applicant stated that she cannot live out in the open, kiss a woman in public or hold hands because she respects the Muslim religion. When asked whether she had instances of past harm the applicant explained that she was ‘loser’ because as a lesbian she was not respected in Malay society, or by her family.
When she was asked if she has experienced harm in the past, she disclosed that her uncle punched her in the head because he did not like the way she behaved or presented. As her father had died, her uncle sought to influence her and acted as a ‘father figure’ in her life and sought to prohibit her living a lesbian life.
The applicant presents as masculine looking and states that she has identified as a lesbian for most of her life. She stated that she was first attracted to girls when she was about 10 or 11 years old and has never been attracted to men. She claims she was attracted to girls in high school and had her first girlfriend when she was about 15 years old.
The applicant described a particularly traumatic experience with the last girlfriend she had in Malaysia. The applicant was in a relationship with [Ms D], whose mother discovered the relationship and forbade her daughter to see the applicant. The applicant was invited to attend her girlfriend’s mother’s home and the mother slapped her across the face. She was alarmed by the slap, and she was particularly fearful of her girlfriend’s family’s claims that they may denounce her to the police unless the applicant stopped seeing her girlfriend. This experience was traumatic for the applicant and she is fearful of serious harm should she return to Malaysia. She fears being denounced to authorities by persons who identify her as a lesbian, particularly, but not limited to, family members of women she is in a relationship with and who see her as the instigator of the lesbian relationship.
The Tribunal asked the applicant about her past relationships and the applicant confirmed she had ‘many’ relationships in Malaysia, but she described two serious relationships. She originally planned coming to Australia with [Ms D] but the family stopped her girlfriend from seeing the applicant. The applicant confirmed that she had planned leaving Malaysia with another partner but in the end the applicant travelled to Australia on her own.
The applicant stated that she could not return to Tawau or live with her family because her family would force her to marry against her wishes. She is fearful of her uncle. Her father died when the applicant was [age] years old and her maternal uncle, who wanted to act as a father figure, wanted to force her to live a regular life, present less masculine and objected to her short haircut. Her family and her uncle knew that she was gay because she unable to hide her sexuality or her attraction to girls. The applicant acknowledged that her family would not physically harm her but critically she fears returning to Tawau because returning to her family would mean living in hiding and not living the life of a lesbian that she ‘yearns’ for.
Upon arriving in Australia the applicant formed a relationship with her current girlfriend
[Ms A] with whom she has been in a relationship for about three years. The applicant explained that [Ms A] is currently living in [Country] as her student visa expired. The applicant is hoping to marry her girlfriend as soon as [Ms A] is able to return to Australia. The Tribunal notes that [Ms A] accompanied the applicant during the video conference with the delegate in 2022 and that the applicant showed text messages to the Tribunal that the applicant exchanged with [Ms A] during the last few weeks. The Tribunal accepts that the applicant is currently in a relationship with another woman as claimed, and that the relationship has been ongoing for about three years.
The Tribunal accepts that the applicant is a Muslim woman who identifies as lesbian.
The Tribunal accepts that the applicant fears returning to her family in Tawau because she fears of living a life in hiding and of being denounced to police by persons who identify her as lesbian.
The Tribunal accepts that the applicant’s family members and relatives admonish and pressure her to conform to Muslim norms and to denounce her homosexuality and that this pressure prevents the applicant from being in contact with her family.
The Tribunal accepts that the applicant suffered past harm and faced discriminatory actions by her family and her partner’s family and that this physical and mental mistreatment amounts to serious harm and is likely to continue if the applicant returns to Malaysia.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The Tribunal referred to Country of Origin Information Service (COIS) Effective 14 August 2024. It was put to the applicant that although Malaysian secular law criminalises same-sex sexual acts, in practice the law is rarely invoked. A former British colony, Malaysia has retained its colonial-era law against sodomy.[1] Malaysia’s Penal Code criminalises sodomy but authorities do not actively enforce the law. The Penal Code has only been invoked seven times since 1938, with four of those instances against former deputy prime minister Anwar Ibrahim. International observers and human rights organisations viewed sodomy charges against Anwar Ibrahim as politically motivated. Those found guilty under section 377A of the Penal Code for ‘carnal intercourse against the order of nature’ are liable for imprisonment of up to twenty years and a whipping.
[1] 'Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State, 22 April 2024, section 6, p.20, 20240502105551; ‘State-Sponsored Homophobia 2020: Global Legislation Overview Update', Lucas Ramón Mendos, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 15 December 2020, p.133, 20201222140105;
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 Shariah and Penal Code offences. These laws prohibit males cross-dressing and/or presenting as women, and in some cases, females cross-dressing and/or presenting as men, as is the case with the applicant who presents as masculine.[2]
[2] DFAT Report 3.128
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.[3] The fear of being denounced to authorities was particularly prevalent in the applicant’s evidence and she referred to lesbians being lashed after being caught kissing in a car, and fearing such treatment.
[3] DFAT Report 3.129
There is nuanced DFAT country information available relevant particularly to lesbian relationships. Lesbians and queer women are much less visible in Malaysia than other members of the LGBTQIA+ community. LGBTQIA+ activism in Malaysia has historically focused on HIV, as HIV was often the only issue considered ‘acceptable’ for government engagement. Accordingly, NGOs advocating for lesbians and queer women are less prominent and have less funding. Forced heterosexual marriages for lesbians are common, especially in Sabah. Lesbians in such marriages find it very difficult to obtain a divorce without outing themselves, especially if they are Muslim. In rural areas, families sometimes confine lesbians to the family home due to cultural stigma. Treatment of lesbians is worse for Muslim women as Shariah Law criminalises sexual activity between women. In-country sources reported there were four arrests of Muslim women for Shariah offences over two months alone in early 2022. While Shariah offences only apply to Muslim women, they also have a large impact on non-Muslim lesbians by harming their relationship with authorities. [4]
[4] DFAT Report 3.138
The DFAT Report states at 3.147 that the level and frequency of discrimination faced by members of the LGBTQIA+ community differs according to their socio-economic status, religion, geographic location, and degree of openness. It observed that well-educated urban LGBTQIA+ individuals of high socio-economic status are less likely to have to hide their sexual orientation within their family and social circles than are poorer individuals in rural areas and society is generally more permissive of people who identify as LGBTQIA+ in Kuala Lumpur than they are in East Coast Peninsular Malaysia or Sarawak and Sabah.
The overall assessment in the DFAT Report at 3.147 is that:
… LGBTI individuals face a moderate risk of official and societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces and employment opportunities, and/or familial or societal violence. These risks are higher for Malay/Muslim LGBTI individuals, for transgender individuals, and for LGBTI individuals located in poorer and rural areas.
As discussed above, other country information indicates the risks may have increased since the DFAT Report was released. The applicant, who lives an openly lesbian life, and presents as masculine, faces a moderate risk of being subjected to prosecution if she returned to Malaysia. This is particularly so as the applicant is of a lower socio economic status and gave evidence to the Tribunal that she barely subsisted on manual labouring jobs she obtained in factories. She has no support from her family, has no tertiary qualifications and the Tribunal accepts her employment opportunities in Malaysia are limited to lower-paid work.
Importantly, in the Tribunal’s view, she is more vulnerable because she does not conform to gender norms and her sexual orientation is visible and the likelihood of being pursued by authorities, even without being ‘denounced’ is therefore increased. The country information obtained from the Home Office of the United Kingdom supports the finding of the Tribunal that the applicant is a person who is likely to demonstrate a real risk of treatment by state actors that amounts to persecution because the applicant is a Muslim LGBTQIA+ person who, if accused of same sex sexual acts is likely to be prosecuted under Sharia law.[5]
[5] Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression
Societal attitudes mean there is a negative view of same-sex relationships and a strong social taboo in relation to LGBTQIA+ issues among Muslims. LGBTQIA+ persons face discrimination, stigma, threats, and violence; including sexual violence from family members which varies depending on their socioeconomic class, religion, place of residence, and how they present themselves. Well-educated, wealthier LGBTQIA+ people in urban areas are less likely to have to conceal their sexual orientation from their family and friends. As stated above, the Tribunal accepts that the applicant is a person who has experienced violence at the hands of family members for being and presenting as a lesbian woman. She fears and has been threatened with being denounced to religious authorities. She presents as masculine and states that she is unable to ‘hide’ her true sexual orientation. The Tribunal is satisfied for that reason, if the applicant were to return to Malaysia, she would face harassment in employment situations and in public spaces and she would be subject by society and her family to verbal abuse. Because of her position in Malaysian society and her family situation, she could not hide her sexuality within her family and social circles and the Tribunal is satisfied she would be at risk of harm from violence if she lived openly as a lesbian woman from her family members and from others. The Tribunal relies on the country information discussed above to find that this treatment 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 she were to return to Malaysia.
I have considered the country information above which indicates that LGBTQIA+ individuals face a moderate risk of official and social discrimination . As found above, the Tribunal accepts that the applicant is in a committed long term relationship with another woman and that the applicant would elect to marry her current partner if that opportunity would present itself. As Muslim LGBTQIA+ persons accused of same-sex sexual acts are likely to be prosecuted under Sharia law (which does not apply to non-Muslims) this would, when applied, by its nature be persecutory.
For the purposes of s.5J(5) of the Act and taking into account, the country information described above, the Tribunal finds that the applicant will face a real chance of significant harassment and significant ill treatment in Malaysia, now or in the foreseeable future, for the essential and significant reasons that she is a member of a particular social group namely, lesbian an innate characteristic or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to their identity or conscience that they should not be forced to renounce it, and have a distinct identity which is perceived as being different by the surrounding society. As a Muslim lesbian the Tribunal finds that the applicant will face a real risk of persecution on account of her membership of the particular social group.
Does the applicant satisfy the refugee criterion for protection?
For the reasons given above, the Tribunal is satisfied that the applicant:
·is a refugee within the meaning of s 5H;
·has a well-founded fear of persecution within the meaning of s 5J(1); and
·is a person in respect of whom Australia has protection obligations under s 36(2)(a).
All areas of Malaysia
For the applicant to satisfy the refugee criterion, there must be a real chance of persecution (including serious harm) in all areas of Malaysia (s 5J(1)(c)). The DFAT Report at 3.147 states:
The level and frequency of discrimination faced by members of the LGBTQIA+ community differs according to their sexual orientation and gender identity, socio-economic status, religion, geographic location, and degree of openness regarding their sexual orientation and gender identity. Well-educated urban LGBTQIA+ individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than poorer individuals in rural areas. In-country sources reported that people in Kuala Lumpur were generally more accepting of LGBTQIA+ people than in East Coast peninsular Malaysia or Sarawak and Sabah. In-country sources also told DFAT that most transgender individuals from Sarawak and Sabah relocated to Kuala Lumpur for employment and to escape discrimination.
Some LGBTQIA+ persons may be able to relocate to live in Kuala Lumpur relatively unscathed, this may apply particularly for those from privileged socio-economic backgrounds who have family support. However, as noted above, the applicant does not have family support and is likely to continue to work in low paid employment in Malaysia. There is some evidence that she has lived in Kuala Lumpur for a short period of time when she was [age] or [age] years old and worked in a factory, but she stated that she found it difficult to sustain herself in Kuala Lumpur as she had no support network there. She was also not of the view that she would be tolerated any more in Kuala Lumpur as a Muslim person and would have to hide her lesbian identity. There is no evidence that she is part of any LGBTQIA+ community that could provide some protection in Kuala Lumpur or in any other area. In that case, the Tribunal finds the risk of serious harm to the applicant discussed above exists in all areas of Malaysia, including in Kuala Lumpur.
An asylum seeker cannot be expected live ‘discreetly’ to avoid persecutory conduct.[6] In this case, the Tribunal accepts that the applicant will not act discreetly, hiding her sexuality, to avoid the harm she fears. The Tribunal finds that she presents masculine and also is determined to live her life as a lesbian, whilst professing to be ‘respectful’ of the Muslim religion. This conflict on the one hand living her LGBTQIA+ life, and on the other hand being a person of Muslim faith, causes her considerable conflict.
[6] In Appellant S395/2002 v MIMA (2003) 216 CLR 473.
The Tribunal has considered DFAT’s assessment that the risks of harm are higher for Muslim LGBTQIA+ individuals, as well as those who reside outside urban areas. The Tribunal finds that if the applicant returns to any area in Malaysia now or in the reasonably foreseeable future and lives openly as a lesbian woman, she will face a real chance of serious harm including being charged with a crime under the Penal Code or Shariah Law, as well as societal violence and discrimination.
The Tribunal accepts that a lesbian woman in Malaysia constitutes a particular social group as that term is defined in the Act. The Tribunal finds that essential and significant reason for the serious harm directed at the applicant from the community, the State and authorities is the applicant’s membership of that group, particularly as she is of Muslim faith. On the country information above, the Tribunal finds that the persecution faced by the applicant involves systematic and discriminatory conduct.
The Tribunal gives weight to the country information above indicating that anti-LGBTQIA+ views are pervasive throughout Malaysian society, that consensual homosexual acts and behaviours remain illegal under Federal Criminal Law and State Shariah laws and that Fatwas against actual or perceived LGBTQIA+ conduct are in place in most States. In this case, the Tribunal finds that the applicant cannot relocate to avoid the harm she fears, and that the real chance of persecution relates to all areas of Malaysia.
To the extent that the applicant faces harm from members of the community, country information confirms that police condone and participate in such violence. Further, the Tribunal considers that any attempts to seek protection from the authorities gives rise to a real chance of serious harm to the applicant. In these circumstances, she cannot obtain effective protection from the harm. Section 5J(2) does not apply in this case.
I find that it would not be reasonable for the applicant to modify her behaviour, as to do so requires her to alter or conceal his true sexual orientation. This an impermissible modification for s 5J(3)(c)(vi). The Tribunal finds s 5J(3) does not apply.
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. The Tribunal finds that s 36(3) does not apply in the circumstances of this case.
On the totality of the claims and evidence the Tribunal finds that the applicant has a well-founded fear of persecution if she returns to Malaysia.
Refugee: conclusion
The applicant meets the requirements of the definition of refugee in s.5H(1). The applicant meets s 36(2)(a).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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Version 2.0 July 2024, Home Office, UK