2205696 (Refugee) - [2025] ARTA 859

2205696 (REFUGEE) [2025] ARTA 859 (18 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2205696
Tribunal:General Member D Younger
Date: 18 March 2025

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

Statement made on 18 March 2025 at 10:04am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – bisexual man – short relationships with women, and no same-sex disclosure, activities or relationships – no external harm but repression, depression and suicidal thoughts – period as unlawful non-citizen – defrauded by agents before making own application – dating apps and hookups with both genders and couples – still coming to terms with sexuality – no mental health consultations or treatment – credible claims and evidence – country information – social, cultural and religious taboos and civil and religious laws – modification of behaviour unreasonable, real chance of harm relates to all areas and no effective state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (c), (3), (5), 5L, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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[1] (the Department) on 6 April 2022 to refuse to grant the applicant a protection visa (the delegate’s refusal decision) under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] Now the Minister for Immigration and Multicultural Affairs.
The applicant provided a copy of the delegate’s refusal decision to the Tribunal as part of the review application, which was lodged on 17 April 2022 in the Administrative Appeals Tribunal (AAT). On 14 October 2024, the 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 Tribunal is satisfied that the applicant has lodged a valid review application.
The applicant who claims to be a national of Malaysia, applied for the visa on 8 October 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act 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 in the same class as that applied for by the applicant under ss 36(2)(b) or 36(2)(c) of the Act.
The applicant appeared before the Tribunal on 11 February 2025 to give evidence and present arguments. The hearing was conducted in English and without an interpreter at the applicant’s request, and the Tribunal was satisfied that an interpreter was not required. The applicant was self-represented.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee criteria or complementary protection criteria of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[2]
Mandatory considerations
[2] see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background and receiving country
The applicant claims to be a [Age]-year-old Malaysian male citizen born in Sabah, Malaysia.[3]
[3] PVA pg 2; passport provided with PVA.
At the hearing he stated that his ethnicity is Kadazan-Dusun, however the Protection Visa Application (PVA) did not enable him to specify that ethnicity in the available options, so he nominated “Malay” on the PVA.[4] The applicant stated his religion is Catholic Christian.[5]
[4] Hearing evidence; PVA pg 17.
[5] PVA pg 17 and 29.
According to the delegate’s refusal decision, the applicant arrived in Australia as the holder of a Class UD subclass 601 Electronic Travel Authority (ETA) [in] April 2017, and has not departed Australia since arriving here.[6] The ETA was granted on 24 March 2017 and ceased on 4 July 2017, after which the applicant remained in Australia as an unlawful non-citizen until he lodged his PVA on 8 October 2018,[7] and the applicant was then granted a bridging visa. The PVA was lodged more than a year after his ETA ceased,[8] and approximately 1.5 years after his arrival in Australia.
[6] Delegate’s refusal decision dated 6 April 2022 pg 1.
[7] Delegate’s refusal decision dated 6 April 2022 pg 1.
[8] Delegate’s refusal decision dated 6 April 2022 pg 1.
The applicant provided certified copies of identification documents as part of his PVA, including passport, national identity card and driver’s licence, the latter two documents which stated he was a resident of Sabah. The delegate accepted that the applicant is a citizen of Malaysia and there is no information before me indicating otherwise. I therefore find that the applicant is a citizen of Malaysia, and that is his receiving country for the purposes of assessing his claims for protection.
Evidence before the Department
Protection visa application (PVA)
In addition to the information referred to under the heading “Background and receiving country” above, the applicant stated that he grew up in Sabah, Malaysia where he attended primary school and lived with his family, including his parents, [sisters] and one brother.[9] The applicant stated he had travelled to [Countries 1 and 2] for short holidays in 2014-2016, and had no right to enter or reside in another country other than Malaysia.[10]
[9] PVA pg 4 to 9; 22.
[10] PVA pg 17 and 21.
The applicant completed further school studies in [Location] before completing a university degree in [subject] in Kuala Lumpur.[11] He then worked in various roles and locations in Malaysia, including most recently in Selangor for approximately three years until early 2017 as a supervisor in a [company].[12] In Australia, during 2017- 2018 he had been travelling and working in part-time and volunteer positions, relying on savings from his previous work in Malaysia.[13]
[11] PVA pg 28.
[12] PVA pg 23-25.
[13] PVA pg 26.
The applicant stated he has never married.[14] Since been in Australia he had regular contact with his relatives in Sabah around three to four times per week on average.[15]
[14] PVA pg 2.
[15] PVA pg 11.
The applicant stated that he departed Kuala Lumpur [in] April 2017 with “approved documents such as Malaysia Passport linked with ETA, Travel Flight Ticket”, however he ticked “no” to the question of whether he had departed Malaysia legally.[16]
[16] PVA pg 18.
The applicant’s protection claims are summarised as follows:
·     He had one single reason for leaving Malaysia, to seek protection from the Australian government for human rights. He considers himself as a bisexual person, with feelings towards both genders sexually, and intends to live his life freely and openly in Australia;
·     He comes from a loving family, who are dedicated Catholic Christians, and he grew up with a solid foundation of Christianity in his daily life;
·     Since he was a kid he believed he had feelings towards both genders sexually, and he felt that this was not something which he could tell, speak about or fully understand within the Christian and Muslim[17] environment that he lived in. He grew up believing that bisexuality was condemned, and as a result he was scared of his sexuality, including believing that he had problems mentally and being scared to tell anyone or get help;
·     In Malaysia, the LGBT community has been mistreated, injured, bullied and denied by their family and community;
·     The applicant has experienced psychological harm, growing up with repeated feelings of being degraded, shamed and ridiculed which led to him feeling afraid of his own self and experiencing feelings of depression and loneliness;
·     Being LGBT, and specifically bisexual in his case, is taboo and discouraged in the Malaysian community, and if he returns to Malaysia and lives openly as a bisexual man, he will face problems including injury and even mental breakdown due to the discrimination against LGBT people, and he could also be arrested for engaging in LGBT behaviours;
·     He does not think he will not be protected by the authorities given the Malaysian government is not fond of LGBT acts, and previous governments have banned LGBT people in the media and people engaging in homosexuality get arrested;
·     Relocation within Malaysia is impossible, as LGBT people face discrimination and mistreatment everywhere in Malaysia.
[17] By reference to the majority of the Malaysian population.
In seeking protection, the applicant acknowledged that it was “unacceptable” he had breached his visitor visa contract by over-staying in Australia. His explanation was that he had tried to apply through agents who had taken his money and not assisted him, before going through the application process by himself to avoid fraud and fight for himself. [18]
[18] PVA pg 30.
The applicant signed the Declarations pages of the application, which includes the warning that giving false or misleading information is a serious offence, and that the information provided in the application is truthful and honest in every way.[19]
Department information
[19] PVA pg 36-37.
The applicant was not invited to attend an interview with the Department. On 8 March 2022 the applicant was sent a letter under s 56 of the Act inviting him to provide additional information about some of the claims in his application, clarification regarding particular points and evidence in support of his claims. The applicant did not respond to the Department’s request by the date of the assessment, and the delegate proceeded to make an assessment based on the information before them. The delegate found that whilst they had considered the applicant’s claims, the applicant’s lack of response raised doubts as to the veracity of his claims of fearing harm in Malaysia as a bisexual man as claimed. The delegate noted there was no evidence demonstrating the applicant had been targeted with harm or punishment by the Malaysian government or anyone in Malaysia because of his bisexuality, and overall, due to the lack of detail in his application and evidence to support his claims, and failure to provide further information, the delegate was not persuaded the applicant’s claims were genuine.[20]
[20] Delegate’s decision record pg 4.
Evidence before the Tribunal
Pre-hearing evidence
The applicant lodged his Application for Review with the Tribunal on 17 April 2022, which did not contain any further claims for protection, and the only supporting documents were the Notification and decision from the Department.
In a “Pre-hearing information form” dated 6 November 2024 under the heading, Claims for protection, the applicant stated:
1)I am seeking asylum in Australia through protection VISA due to discriminatory environment I could be facing in my home country due to my Sexuality. Growing up in a Catholic family in Malaysia, I felt my bisexuality was a forbidden and stigmatized identity, as Malaysia is predominantly Muslim and holds conservative views on LGBT issues. I struggled with depression, loneliness and feelings of self-repression, as I feared being openly bisexual due to society condemnation. This internal conflict making it difficult to live authentically. In Malaysia, LGBT individuals face significant societal and governmental discrimination.
2)After for about 7 years and 8 months living in Australia, I have found peace and I’m able to live as free as I can. Also embracing my authentic self is the most fulfilling to me. Having said this, the depression that I used to face growing up has gradually disappear in my mind and I don’t feel lonely or feeling not good enough. Therefore, if I can keep living here, it’ll be a relief for me and I don’t think I can go back and re-live the life that I used to have.
In the “Response to hearing notice” dated 18 January 2025, the applicant stated that he did not have any documents or witnesses to rely on at the hearing.
Applicant’s oral evidence at hearing
At the hearing on 12 February 2025, the applicant confirmed he recalled his PVA and the claims made for protection which he had completed himself, and confirmed that all the claims made were true and correct.
The applicant confirmed he has never married or been in a defacto relationship, and he has no children. He lives alone in the [City] area, where he has lived fairly consistently since his arrival in Australia. He works full-time as [an occupation 1], having been employed in this role since around the time when COVID started, and prior to that working in a few jobs including in [workplace] management. He financially supports himself, and also provides financial support to his younger sister in Malaysia for her university studies and living expenses.
The applicant confirmed his education history and employment history as stated in his PVA.
In relation to the PVA question of whether he had departed Malaysia legally [in] April 2017, where the applicant had ticked “no”,[21] the applicant said this was a mistake and confirmed he had departed legally.
[21] PVA pg 18.
The applicant confirmed that his only claim relates to his sexuality of being a bisexual person. The applicant confirmed he is not raising any claims pertaining to his ethnicity or his religion, notwithstanding the references in his PVA as summarised above.
Asked about why he left Malaysia, the applicant spoke at length about his background being from a close-knit, loving, Christian family where his father was [an occupation 2] and his mother was a housewife and volunteer lector at their family church, where he was raised with very strong Christian values. He was a “good kid” who wanted to do the right thing by his family. Throughout his younger childhood, he was focused on his studies and not thinking about his desires. As he became a teenager and started going through puberty he felt confused as to who he was attracted to and desires he felt towards both genders. He did not act on these desires but pushed these feelings down, believing that they were wrong and he felt ashamed of these feelings. It was not until years later, when he was working in his last job in Malaysia in about 2016, that he “had enough”, feeling that everything was getting clearer and clearer with his feelings of bisexuality and that he was being “pushed to the wall”. He got to the point where he was very sad and just did not care anymore about anything in his life due to his confusion about his sexuality. He decided he would come to Australia to try to get away and figure himself out.

Asked about whether he had experienced harm in Malaysia, the applicant confirmed that he did not experience any physical harm because he had always been in the closet, so nobody knows his real sexuality, and this (as part of the protection visa application and review) is the first time he had talked about it openly. His feelings of psychological harm were relating to the way that he had been brought up, and feeling ashamed within himself, but no-one else had specifically shamed him because no-one knew. He said he could not come out to his family, and never would, because he believes it would break their hearts because of their beliefs. He talked about coming to Australia to find his “space away from them”, as although he was very close to his family he was unable to express himself to them as to who he really was. He had felt that the safest and best thing was for him to come to Australia and just “be” without telling anyone.
Asked about what it was that made him realise he was different regarding his sexuality, the applicant spoke about his boarding school education from 13 years old, which had both genders but strictly male/female sleeping dormitories, when he first experienced “confusing” (sexual) feelings whilst going through puberty, although at that time he didn’t pay much attention to it because he was focused on his studies. Right after boarding school, he progressed to foundation college (rather than high school due to his high level of achieving) and that was when the desires/feelings he felt towards both genders became stronger.
He has had some short relationships with women throughout his life. These have been focused on an emotional connection, rather than physical connection, because sex is taboo in relationships given his culture and religion. He first started having relationships with women when he was about 18 years old when he was at college, this was about three months duration. Then during university he had “maybe two” relationships that lasted a couple of months. He always “sabotaged” his relationships because of feelings towards the other gender. He would try to distance himself from the woman during the relationship and then end up ending things, using excuses like he needed to focus on his studies, and sometimes by ‘ghosting’ them. When he was studying it was more socially acceptable to be single, but by the time he was in a working environment he felt there were more expectations to be in a secure relationship from family and friends. Friends noticed he had not got married and started asking questions about this. Once he started working he had his longest relationship with a woman of about six months, but he couldn’t stick with it, and he now realises he sabotaged that relationship too.
Asked about whether he had told anyone about his sexuality in Malaysia, the applicant said he did not have anyone else he could tell, not even friends, and said he shoved his feelings down, and looking back on that period of his life he understands he was depressed and he sabotaged his career, his relationship and his life there because of these confused feelings. He didn’t want to deal with that in front of anyone there and decided it was best to be alone.
Asked about whether his family questioned him about leaving Malaysia, he said that he did not even tell them he was quitting his job – he just did it, bought a ticket to Australia, then went home briefly and told his parents he needed a break from work and he was visiting here. It wasn’t until he came to Australia that he told his parents he wasn’t coming home. He has given excuses for why he can’t return to Malaysia, telling them he needs to work here and get as much money as he can, but he thinks that in the back of their mind they know that he is different; he just doesn’t want to break their hearts by confirming it. Whilst here he has supported his sister financially in her university studies, so this has been a good excuse to his family as to why he needs to stay in Australia.
He has not had any dating-type relationships like the ones he had in Malaysia, with anyone whilst in Australia. Asked about what his experiences of sexuality have been in Australia, he referred to having had intimate “one-time hookups”, “no strings attached”, with both men and women, but these have been anonymous encounters where he has used a fake name to hook up via dating apps like Grindr and Tinder. He usually tries to find a couple to hook up with, a woman and a man, together. He limits these encounters to when he visits major cities away from his city of residence/work, because he does not feel comfortable to do so in his local community. Asked how long and how many he has had of these one-time hookups, he said he started a few months after he arrived in Australia and has hooked up with a “lot” of people in total; probably once or twice in the last three months.
Asked about whether he had come out to anyone in Australia, he said that he was still in the closet because he still has problems accepting himself including feeling disappointed in himself as being a bisexual person. He said he feels attracted to both sexes but he just does not feel comfortable to tell anyone openly about this. He will not tell his family because he is worried about what would happen – if he would lose them. He does not have any close friends in Australia, only acquaintances, and there is no-one he would feel able to discuss this with at the moment. He does think that it is only a matter of time (before he can come out in Australia), as he is getting to the point where he is slowly starting to accept himself and deal with his internal struggles.
Asked about whether he had sought any counselling or joined any support groups due to the feelings of depression and not being able to discuss his sexuality with anyone, he said he had not, saying maybe he was too proud and that he preferred to deal with things on his own. He thought growing up with such a strong foundation of Christianity and because of not wanting to let his family down, that this had been central to him holding these feelings internally.
Asked about what he thought would happen to him if goes back to Malaysia, the applicant said he’s just going to “be the person I am without telling anyone”, but he’s not sure what’s going to happen in the future. Part of the reason he doesn’t want to come out in Australia is the feeling that there is “no point” in doing so if he has to go back to Malaysia. This is not something that he wants to face, if he “comes out” in Australia and then has to go back to Malaysia.
Asked about if he knows about the experience of anyone who is bisexual or gay in Malaysia, the applicant said he does not know anyone who is bisexual or gay, but he knows about the general experience of LGBT people in Malaysia. It had never been his intention to be openly bisexual in Malaysia, and he had never felt able to express his sexuality whilst he was there. He had always been away from his family since he was 13 years old at boarding school, and then in his higher studies and for work, but yet he had never felt free to experience his sexuality. Even in those other places, throughout Malaysia the population is 80% Muslim and no-one talks about different sexualities, and he could see how LGBT people were discriminated. He thought it was better to pretend to himself he wasn’t different. If he has to return to Malaysia, no matter where he goes, he will not feel safe from discrimination if he were to have any experience of bisexuality. He would not feel free to be able to meet people in the same way he has in Australia, without fear of being found out.
Asked about how his experience with his sexuality is different in Australia, he said that he can be relaxed, that there is no judgment here, and in big cities he can have sexual experiences with both genders without the difficulties he would experience in Malaysia. He feels he has the space in Australia to accept himself and has admitted to himself that he is a bisexual. Despite this, telling the Tribunal about this is the first time he has spoken about his sexuality to anyone else, because he still struggles with being publicly seen as bisexual because of his family upbringing and beliefs.
The Tribunal put to the applicant the concerns it had with respect to the period of unlawfulness on the applicant’s visa history, after his ETA had expired, as referred to in the delegate’s decision, and his considerable delay in applying for the PVA after he arrived in Australia. The applicant’s response was to the effect that during that time, he was going through the “darkest moment of [his] life”, experiencing feelings of sadness to the point where he “didn’t care” about anything at all, he was having suicidal thoughts, tied up with his confusion about his sexuality. He had come to Australia on the ETA just wanting to get away from his life in Malaysia, not looking to live here forever. Looking back on that time he feels he “sabotaged” his career and life in Malaysia because of his “internal struggles”, and that it was his subconscious mind leading him to make those changes. It was not until he had been in Australia for a while and started to explore his sexuality that he started to feel he was forgiving himself and “healing” his heart. He started looking into how he could stay here, and was told by work colleagues about the process for applying for protection.
The Tribunal also put to the applicant the concerns it had about the Department having written to him under s 56 of the Act[22] seeking additional information and clarification about some of his claims, including as to the applicant’s reasons for delay in lodging his PVA, to which the applicant had not responded. The applicant’s response was that at the time he received the letter, he felt he couldn’t respond adequately, knowing that he did not have any written proof or solid evidence of his bisexuality, and why he was unable to put his PVA in sooner. He was hoping that the Department would call him to an interview to discuss his claims, but they did not do so. He had felt hopeless at that time and following the refusal.
[22] Letter of the Department to the applicant dated 8 March 2022 with attached checklist, and delegate’s decision record pg 3.
REASONS AND FINDINGS
Factual findings
The Tribunal notes the guidance provided in the Department’s Protection Visa Guidelines[23] and the ‘UNHCR Handbook’,[24] in assessing credibility in claims in protection matters, including the difficulties often faced by applicants in obtaining documents or other independent evidence, and circumstances where the benefit of the doubt should be given to applicants who are generally credible but unable to substantiate all their claims. However, the Tribunal is not required to uncritically accept every claim made by the applicant, or to have contrary evidence available before finding that a particular factual assertion by an applicant has not been made out.[25]
[23] 17 April 2024 at [15.4.6].
[24] ‘UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES’, 1 FEBRUARY 2019, AT [196], [203]-[204].
[25] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (19980 86 FCR 547.
Overall, the Tribunal found the applicant to be a credible historian in terms of his background including his family, education and employment details, and found the applicant’s claim of protection with respect to his sexuality to be credible, having regard to the totality of his written and oral evidence and taking into account relevant country information.
Given the applicant’s clear position at the hearing about his claims, as referenced above, the Tribunal accepts the applicant’s claims as solely being related to his sexuality. Therefore, the Tribunal has proceeded to consider the protection claims on that basis alone.
In the PVA the applicant stated that he intended to live his life “freely and openly” in Australia, however at the hearing the applicant’s evidence was that he has not “come out” about his sexuality to anyone, apart from telling the Tribunal. His evidence was to the effect that he has only had short relationships with women whilst in Malaysia, each relationship which he “sabotaged” due to confusion as to his sexuality. Since moving to Australia, he had engaged in sexual liaisons with both genders, however these have been conducted anonymously and therefore without any open acknowledgment of his expression of his sexuality. The applicant spoke at length at the hearing about his psychological struggles and the difficulties he has felt in accepting his sexuality within himself, let alone to acknowledge that openly and in particular, to his family, whom he is greatly concerned about disappointing and upsetting.
The Tribunal acknowledges that expression of a person’s sexuality is a very individual and personal experience, and understandably can be a variable experience across individuals and cultures. The Tribunal has carefully considered the applicant’s evidence with that acknowledgement in mind, as well as in the context of country information discussed below, and finds the applicant’s claims consistent with the country information including that LGBTQIA+ issues are considered taboo, and the prevalence of societal discrimination towards those who openly express their sexuality. The Tribunal accepts and places weight on the applicant’s social and cultural background in growing up in a religious, tight-knit family in Sabah as well as a conservative societal culture, and the difficulties that he encountered with respect to accepting his sexuality, and that these are still factors that he is struggling with in not having “come out” within Australia.
The Tribunal has considered the applicant’s explanation for his delay in lodging his PVA and in providing a response to the Department’s letter under s 56 of the Act, requesting further details and information about his claim. The applicant’s explanation in his PVA for the delay in applying for that visa was that he had tried to apply through agents who had taken his money and not assisted him, before going through the application process by himself. At the hearing – as discussed above – he referred to the period where he had left Malaysia and come to Australia being the “darkest moment” of his life, where he was having suicidal thoughts tied up with his confusion about sexuality. With respect to why he had not responded to the Department’s letter, his evidence was to the effect that he felt is situation was hopeless, knowing that he did not have any written proof or solid evidence of his bisexuality, or as to why he was unable to put his PVA in sooner, and that he had hoped for an interview but that did not happen. The Tribunal accepts that explanation as plausible and reasonable, in the context of the applicant’s other evidence about the psychological difficulties he had experienced in Malaysia and was continuing to experience in coming to terms with his sexuality. In accepting that, the Tribunal notes the details and information the applicant provided at the hearing were largely consistent with his claim raised in his protection visa application, and he did not raise any further claims for protection.
The Tribunal accepts that the applicant considers himself as a bisexual person, with feelings towards both genders sexually, and comes from a loving family, who are dedicated Catholic Christians, and he grew up with a solid foundation of Christianity in his daily life. The Tribunal accepts that due to the applicant’s close-knit family and Christian upbringing, as well as the Muslim culture which surrounded him in Malaysia, that the applicant did not feel comfortable to discuss the feelings which were developing as he was growing up which he has now accepted to be related to his sexuality as a bisexual person, and that as a result he was scared of his sexuality, including believing that he had problems mentally and he felt unable to seek help.
The Tribunal accepts that the applicant subjectively experienced feelings of psychological harm, although not formally diagnosed, which led to him feeling afraid of his own self and experiencing feelings of depression and loneliness. In doing so, the Tribunal accepts the applicant’s evidence about his education and work history, including working in a well-paid, professional job in Malaysia. The Tribunal accepts on the applicant’s evidence that he effectively sabotaged his life and work overseas because of the psychological problems he was experiencing in struggling with his sexuality. The Tribunal places weight on those circumstances in uprooting his life, notwithstanding his good career and strong family ties to Malaysia, as demonstrating the plausibility of his claims.
The applicant’s evidence at the hearing was that the psychological problems that he experienced were internal, relating to his own self struggles coming to terms with his sexuality, against his cultural and family background where such issues were considered to be morally and legally “wrong”. He was clear in his oral evidence that he had not had harm specifically inflicted on him by others because he did not tell anyone about his feelings related to his sexuality. On the basis of the applicant’s clarified evidence at hearing, the Tribunal accepts that the applicant subjectively experienced feelings of psychological harm, but does not accept that the applicant was harmed by others in Malaysia - including by being degraded, shamed or ridiculed.[26]
[26] as stated in the PVA.
The Tribunal accepts, based on country information discussed below, that:
· the LGBT community in Malaysia has been mistreated, injured, bullied and denied by their family and community.
· Being LGBT, and specifically bisexual in his case, is taboo and discouraged in the Malaysian community, and if he returns to Malaysia and lives openly as a bisexual man, he will face problems including injury and even mental breakdown due to the discrimination against LGBT people, and he could also be arrested for engaging in LGBT behaviours.
In accepting the above, the Tribunal has taken into account relevant country information including:
·     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.[27]
·     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.[28]
·     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;[29]
·     Members of the LGBTQIA+ community are typically prosecuted under state-based syariah legislation rather than federal law. In September 2018, a syariah court in Terengganu state sentenced two women to six strokes of the cane and a fine of MYR3,300 (AUD 1,100) after convicting them of having lesbian sex. The caning, carried out in a courtroom in front of 100 witnesses, was the first such sentence to be ordered in relation to a LGBTQIA+ case since 2010. While the investigation of such offences is reasonably common, and prosecutions have occurred, successful prosecutions are rare.[30]
·     LGBTQIA+ issues are considered taboo in Malaysia, particularly among Muslims.[31]
·     In-country sources reported that gay men and men who have sex with men sometimes experienced employment discrimination. Visibly effeminate gay men are reportedly more likely to suffer harassment and discrimination. Many jobs, including all public service jobs, are subject to compulsory health screening. If an employer finds out a gay man has HIV, his employment will be terminated.[32]
·     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.[33]
·     DFAT assesses that members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence. LGBTQIA+ civil society organisations face a moderate risk of official discrimination in the form of legal charges and harassment by officials.[34]
Refugee criterion assessment
[27] DFAT Country Information Report Malaysia (24 June 2024), 3.126, pg 32.
[28] Note 26, 3.127, pg 32.
[29] Note 26, 3.129, pg 32.
[30] Note 26, 3.131, pg 32.
[31] Note 26, 3.133, pg 33.
[32] Note 26, 3.135, pg 33.
[33] Note 26, 3.147, pg 35.
[34] Note 26, 3.148, pg 35.

Based on the applicant’s circumstances and the country information, the Tribunal finds that the applicant has a well-founded fear of persecution, and there is a real chance, being a possibility that is not remote or far-fetched,[35] that the applicant would be persecuted – that is, subjected to serious harm - in the reasonably foreseeable future if he returns to Malaysia and lives openly as a bisexual man.
[35] Chan Yee Kin v MIEA ]1989] HCA 62.
The Tribunal finds that the applicant fears being persecuted by reason of his membership of the particular social group, namely a bisexual man in Malaysia, in accordance with s 5L of the Act, and that this reason is the essential and significant reason for the persecution.[36]
[36] Section 5J(4)(a) of the Act.
Although the applicant did not previously experience harm from others in Malaysia due to his sexuality, the Tribunal accepts that the applicant chose to hide his sexuality for reasons which included avoiding harm from others, and that the applicant does not want to be open about his sexuality if he returns to Malaysia because of fears of future harm. The Tribunal notes that the applicant had past psychological difficulties related to his sexuality in Malaysia, and that whilst he has not been open in Australia about his sexuality, he has been able to express his sexuality in his own way which has been a positive experience for him. The Tribunal accepts that part of the applicant’s concerns about being open about his sexuality, relate to the applicant being concerned about potential repercussions if he must return to Malaysia.
The Tribunal acknowledges that if the applicant were to hide his sexuality again in the future in Malaysia, it would be to avoid harm, and that he could not be required to take “reasonable steps to modify [his] behaviour” to avoid a real chance of persecution, such as by concealing his sexuality: s 5J(3). Such modifications would fall within the exceptions in s 5J(3) of the Act, including conflicting with a characteristic that is fundamental to the applicant’s identity or conscience.[37] If the applicant were to openly live as a bisexual man in Malaysia, the Tribunal accepts on the country information that he faces a real chance of serious harm, noting the definition in s 5J(5) of the Act is non-exhaustive and includes a threat to the applicant’s liberty and significant physical harassment or ill-treatment. Therefore, the Tribunal finds that the persecution involves serious harm to the applicant.[38]
[37] Section 5J(3)(a) of the Act.
[38] Section 5J(4)(b) of the Act.
The Tribunal finds the harm involves systematic and discriminatory conduct[39] on the basis it is directed towards members of the group who face discrimination as described in the country information above.
[39] Section 5J(4)(c) of the Act.
The Tribunal has considered whether the real chance of harm relates to all areas of Malaysia, in accordance with s 5J(1)(c) of the Act. The Tribunal notes the applicant resided in the Selangor area for the three years prior to his departure for work, had briefly worked in some other areas including Kuala Lumpur, and grew up in Sabah, where his family still lives. Considering the applicant’s strong relationship with his family and his work history, the Tribunal considers it likely that should he need to return to Malaysia, he will return to Sabah to be with his family, or he may return to another area for work. The Tribunal acknowledges the country information that in-country sources reported that people in Kuala Lumpur were generally more accepting of LGBTQIA+ people than in areas including Sabah,[40] however the applicant believed that if he was openly bisexual, he would face discrimination and mistreatment everywhere in Malaysia regardless of where he moves. The Tribunal accepts on the country information, that whilst the risk of harm might be reduced in Kuala Lumpur, that in all areas the applicant would face a real chance of serious harm for reason of his sexuality, including a high risk of official discrimination and a moderate risk of societal discrimination including the threat of prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities, and a moderate risk of familial and/or societal violence.[41]
[40] Note 32.
[41] Note 33.
The Tribunal has considered whether the applicant would have access to effective protection measures[42] available to him in Malaysia. The applicant’s evidence was that he did not believe he would be protected, on the basis the Malaysian government is not fond of LGBT acts, and previous governments have banned LGBT people in the media and people engaging in homosexuality get arrested. The Tribunal accepts that these are genuine concerns which are reflected in the country information set out above.
[42] As defined in s 5LA of the Act.
For the above reasons, the Tribunal finds that the applicant has a well-founded fear of persecution and is a refugee within the meaning of s 5H(1) of the Act.
Conclusion
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).
Based on the available evidence, the Tribunal finds that the applicant does not have a right to enter and reside in a third country, and therefore the Tribunal finds that s 36(3) does not apply to the applicant.
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 Act, and directs that subsection 36(3) of the Act does not apply to the applicant.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…