2205756 (Refugee) - [2025] ARTA 1526

2205756 (Refugee) [2025] ARTA 1526 (16 June 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Abu SIDDQUE
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2205756
Tribunal:Kylie McGrath
Date:16 June 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 16 June 2025 at 10:26am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – LGBTIQA+ women in Malaysia – religion – Muslim – low-socio-economic background – poor and rural background – same-sex sexual acts are illegal and against Shariah law – fears persecution by authorities, her family and the public – fears harm, discrimination, forced conversion therapy and forced marriage – threat extends to all areas – effective protection not available – being lesbian is fundamental to her identity – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
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 11 April 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of Malaysia, applied for the visa on 15 May 2019.
The applicant appeared before the Tribunal on 4 June 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s witness. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was represented in relation to the review.
BACKGROUND
The applicant was born in Sabah, Malaysia on [date]. The applicant arrived in Australia [in] February 2019 on a subclass 601 Electronic Travel Authority, valid for multiple entries of up to three months. She has not left Australia since her first arrival.
Evidence before the Department
On 15 May 2019, the applicant applied for a protection visa. Her protection visa application states that she is a lesbian and that her sexual orientation is towards women. The application states that being a lesbian in Malaysia is impossible and that the applicant believes that there is no chance for her to live freely as a lesbian in Malaysia. The applicant wants to stay in Australia to learn about who she is as a lesbian, to be able to express herself and to live freely as a lesbian. She wants to be able to express her sexuality to anyone, to date a person in public, to be accepted in the community and be treated equally. The application then sets out general information about Malaysia as a Muslim country and the treatment of lesbians and others in the LGBTIQA+ community in Malaysia. Through the application, the applicant states that, as a child growing up in this environment, she knew deep down in her core that she always had feelings for the same gender. She became afraid “of my own self and believing whatever in my mind is wrong.” This is the reason she “will never return and re-live the nightmare that I have lived.”
The applicant believes that she will be labelled as “a symbol of self-destruction, sinful, shame and disgusting [sic]” if she returns to Malaysia. She will “most likely be living in fear.” She may be physically or emotionally attacked by members of the community who believe that sex with the same gender is wrong. She may be discriminated against in schools, shopping malls and workplaces, including being denied promotions.
The applicant does not believe that the Malaysian authorities can protect her. Laws and regulations influenced by syariah law make Malaysia “very non-friendly for LGBTQ community.” She does not believe that she can relocate within the country to an area where she will not be harmed. It will only make things worse for her.
A certified copy of the applicant’s Malaysian passport and identity card were submitted to the delegate.
The applicant was not invited to an interview by the delegate in relation to this application.
On 10 March 2022, the delegate sent a request for further information to the applicant, asking the applicant a number of questions in relation to her sexuality. The applicant did not respond to that request.
On 11 April 2022, the delegate refused to grant the applicant a protection visa.
Evidence before the Tribunal
The applicant applied to the then Administrative Appeals Tribunal (AAT) on 18 April 2022.
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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
On 13 October 2024, the applicant was sent a pre-hearing information form by the Tribunal. The applicant did not respond.
On 13 March 2025, the applicant appointed a representative in relation to the review. The applicant provided the following to the Tribunal:
a.a copy of the bio-data page of her passport;
b.a statutory declaration by a witness, dated 6 November 2024, and accompanying identification;
c.a journal article entitled ‘LGBT: An Evaluation of Shariah Provisions and the Laws of Malaysia and Nigeria’ [1].
The witness statement sets out that the witness has known the applicant for almost three years. They work together. Throughout this time, the applicant has always identified as a lesbian. The applicant felt comfortable confiding in the witness because the witness shares the same orientation. The witness also states that, due to religious and cultural restrictions in her home country, the applicant has not been able to pursue a same sex relationship.
On 29 May 2025, the applicant provided:
a.A statement by the applicant, undated,
b.Two photographs, each of two women together, and
c.a duplicate of the witness statement described above.
The applicant’s statement duplicates information on her protection visa application. In addition, the applicant states that she realised that she had feelings for women in [year] when she was in college. She had more female than male friends. She always felt very comfortable and loved by her female friends. At first, she refused to believe what was in her mind because she knew that this was very against the religion and rules of her countries. She kept this a secret from her family, who would be very angry if they found out she was a lesbian.
The statement sets out that, when the applicant was in Australia, she discovered that same-sex relationships are not wrong here and it is her human right to choose her life. She felt very free living here without fear of “being who I am really am” and because she can “choose to love anyone and not be afraid.” She does not feel afraid to “continue being a lesbian and loving women.”
In this statement, the applicant sets out that she had met some people who have the same feelings as her. They went out to clubs and had fun, but only casually. She has joined dating apps, [App 1] and [App 2], “hoping to get a connection with women out there.” She is not in a serious relationship with anyone. She is still looking for a girlfriend. She hopes to find a partner in Australia.
The statement also describes that, in 2021, she met a women at her workplace, who was also a lesbian (the applicant’s witness, as above). They became close friends. She really helped the applicant to know herself as lesbian. She gave her a lot of encouragement not to feel ashamed because she is a lesbian.
On 3 June 2025, the Tribunal requested that the applicant provide screen shots from the dating apps referred to in her statement.
In response, the applicant provided a ten-page document consisting of screen shots of her [App 1] profile. The document shows that a person going by the name of [Pseudonym A], who is [Age] years old, with a profile picture matching that of the applicant, joined [App 1] six months ago. Her profile lists her as looking for friendship and a ‘cuddles buddy.’ Her sexuality is described as lesbian and her relationship status as single. The screen shots shows that the applicant has been contacted by six ‘matches’ and include a sexually explicit exchange between the applicant and another woman with approximately thirty messages exchanged including in November 2024.
On 4 June 2025, oral evidence was given by the applicant in person at hearing. During the hearing, the applicant maintained her claims relating to sexuality. She confirmed that she feared being arrested, jailed and whipped by the police and authorities in Malaysia, being despised, beaten, killed and forced to marry a man by her family, particularly her parents, and being despised and beaten by members of the public on return to Malaysia on the basis of her sexuality.
At hearing, the applicant provided her original passport for citing and the profile names on her social media accounts. The Tribunal also received oral evidence in person from the applicant’s witness.
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 issue in this case is whether the applicant is a lesbian and if so, whether the applicant meets the refugee or complementary protection criteria on this basis. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Receiving country
The Tribunal finds that the applicant is a national of Malaysia as the applicant has provided her original Malaysian passport for citing, has consistently maintained that she is a national of Malaysia and there is no evidence before the Tribunal that suggests that she may not be a national of Malaysia. Accordingly, the Tribunal will assess this application with reference to the Malaysia as both the country of the applicant’s nationality and the receiving country.
The applicant’s place of return
The Tribunal finds that the applicant would return to[Town 1], Sabah on return to Malaysia. The Tribunal accepts the applicant’s evidence that this is where she would return as well as her evidence that her parents and all her siblings reside in [Town 1] and that she has only lived in [Town 1], Sabah and in neighbouring [Town 2], Sabah. Further, the Tribunal accepts that the applicant only lived in [Town 2] to commute to her workplace and would return to live at home in [Town 1] on the weekends.
The Tribunal further accepts that [Town 1] is a socio-economically deprived area, with low population density and high poverty and unemployment compared to other parts of Malaysia[2] and that the applicant herself is from a low-socio-economic background. The Tribunal accepts the applicant’s evidence that she has [a number of] siblings and that she is the only one of her siblings to be educated beyond the fourth or fifth year of high-school. Similarly, the Tribunal accepts that the applicant’s parent’s income derived only from a small business in the marketplace.
The applicant’s religion
The Tribunal accepts that the applicant is a Muslim because this is documented on her Malaysian identity card. Further, the applicant was consistent in relation to this in her protection visa application and at hearing.
The Tribunal also accepts the applicant’s evidence at hearing that she practiced her religion in Malaysia but does not do so in Australia. In Malaysia, it is extremely difficult to formally leave or convert from Islam[3]. The applicant did not suggest that she sought to do so. On this basis, the Tribunal finds that the applicant would continue to practice as a Muslim, as she has done previously while in Malaysia, on return to that country.
The applicant’s claims as a lesbian
The applicant claims that she:
·identifies as a lesbian,
·lives openly as a lesbian in Australia, and
·has expressed her sexuality in Australia through one casual, physical relationship, sexting and engaging with other women through LGBTIQA+ specific apps.
The Tribunal accepts these claims for the reasons set out below.
First, the applicant presented persuasive written and oral evidence, that was internally consistent and plausible with reference to country information and as a LGBTIQA+ narrative. At hearing, the applicant responded to questions clearly and, seemingly, without evasion. She provided detailed and cogent responses. She did not appear to be exaggerating her claims. For example, she did not claim that she had been harmed in any way in Malaysia. She did not raise any additional claims. She did not claim to have been in a relationship, other than a casual relationship, with another woman.
Further, the applicant’s oral evidence was consistent with her protection visa application and her written statement and plausible with reference to country information setting out that being a lesbian is not accepted within Malaysia and that lesbians in Malaysia may be targeted for prosecution and other forms of harm[4].
In addition, her written and oral evidence was persuasive and plausible as a LGBTIQA+ narrative. The applicant described, at hearing, that she came to understand that she was a lesbian while she was at college in Malaysia, refused to believe this at first because it was seen as so wrong in her country, came to Australia and saw that homosexuality was not considered wrong here, was told that someone in her workplace was a lesbian, sought out a friendship with that colleague and, in time, disclosed her sexuality to her. She further described that this colleague, her witness, supported her to move past her shame about her sexuality and come to tell others in her workplace that she was a lesbian. The applicant then had started to express her sexuality through a casual, physical relationship, sexting and engaging with LGBTIQA+ specific dating apps. In sum, the applicant presented persuasive written and oral evidence, that was internally consistent and plausible with reference to country information and as a LGBTIQA+ narrative
Second, the applicant’s evidence was corroborated by her witness and information from the applicant’s dating apps. The applicant’s witness[5] gave evidence that she had noticed how the applicant interacted with women, including herself, within their workplace and was not surprised when the applicant disclosed to her that she identified as a lesbian. The witness gave evidence that she herself was a lesbian, that the applicant had been told of this by other colleagues and that the applicant sought her out and ultimately confided in the witness that she was also a lesbian. The witness supported the applicant in relation to her feelings of shame about her sexuality and in relation to her struggles to find the right match with women on dating sites. The witness also gave oral evidence that “we all know at work,” except for those within the workplace of Muslim faith, and that the applicant had been on a few dates but had not yet found the right person.
The Tribunal finds the witnesses’ evidence to be credible and gives weight to her evidence as the witness was consistent within her oral and written evidence and her evidence was consistent (for the most part) with that of the applicant. In addition, her evidence (for the most part) related to matters directly and personally observed by the witness. Further, the witnesses’ evidence was provided in the forms of a signed statutory declaration and sworn evidence in person at the hearing (with accompanying offences and penalties for false statements) and the witness does not appear to have any vested interest in the outcome of this matter.
The Tribunal notes that the applicant did not provide the applicant’s witness statement to the delegate. It was only provided after the delegate’s decision. The applicant explained at hearing that she did not have the assistance of a lawyer when her protection visa application was before the delegate and that she needed assistance from a lawyer to understand that she should provide a witness statement. The Tribunal accepts this explanation to be reasonable and accordingly, does not draw an inference unfavourable to the credibility of the witness statement.

The applicant’s evidence was also corroborated by her active [App 1] profile (screen shots of which were provided to the Tribunal), which lists her sexuality as lesbian and included direct evidence of the applicant’s engagement with other women, including through sexting. The Tribunal gives weight to this evidence.
The applicant explained to the Tribunal at hearing that she attempted to take screen shots of her [App 2] profile but that these appeared only as black screens. This is consistent with information from the app developer that the app has a screenshot protection feature[6]. Accordingly, the Tribunal does not draw any adverse inference from the failure to provide this evidence. The applicant also provided two photographs of herself with another woman. The Tribunal does not give weight to this evidence as the nature of the relationship between the applicant and those in photographs is not clear on the face of the photograph.
In sum, the applicant’s claims in relation to her sexuality are corroborated by her witness and her profile on the LGBTIQA+ app, [App 1].
Third, the applicant raised claims about her sexual identity in her protection visa application within three months of her first arrival to Australia on a multiple entry visa while still lawful. The Tribunal finds this to be indicative of a genuine subjective fear arising from a truthful account of her sexual identity.
The Tribunal notes that the applicant did not respond to the delegate’s detailed request for further information about the applicant’s sexual identity in March 2022 nor the Tribunal’s pre-hearing information form, which seeks confirmation in relation to the applicant’s claims for protection. The applicant explained at hearing that she did not respond to the delegate’s request because she did not have a partner, had not met anyone at all and did not have any evidence that about her sexual identity. She did not know what to do and chose not to respond. The Tribunal considers this to be a reasonable, through regrettable, explanation for the applicant’s failure to respond to the delegate’s request. In relation to her failure to respond to the Tribunal’s request, the applicant’s explanation was that the request prompted her to seek out a lawyer, which she did do in response to the request. The Tribunal finds that the applicant’s failure to respond to requests for further information, for the reasons provided by the applicant, do not outweigh the Tribunal’s reasons for accepting the credibility of the applicant’s claims.
In summary, the applicant presented persuasive oral evidence at hearing that she identifies as a lesbian and, in Australia, lives openly as a lesbian and has expressed her sexuality. This evidence was consistent with her written claims, which were provided within three months of the applicant’s first arrival in Australia while she was still lawful and able to return lawfully to Australia. Her evidence is plausible with reference to country information and LGBTIQA+ narratives as well as being corroborated by her witness and information from the applicant’s dating apps. For these reasons, the Tribunal accepts the applicant’s evidence to be credible, generally, and in relation to these specific matters.
The Tribunal finds that the applicant identifies as a lesbian, lives openly as a lesbian in Australia, and has expressed her sexuality in Australia through one casual, physical relationship, sexting and engaging with other women through LGBTIQA+ specific apps.
The applicant’s expression of her sexuality in Malaysia
The Tribunal accepts the applicant’s evidence that she did not express her sexuality in any way while she was in Malaysia because she feared being beaten or killed by her family and the community as well as being arrested and punished by the police. Further, the Tribunal accepts the applicant’s evidence that she would not express her sexuality on return to Malaysia and that, again, this would be because she feared being beaten, killed, arrested, and punished.
The Tribunal accepts this evidence because the Tribunal has accepted the applicant’s claims to be credible (as above). In addition, specifically in relation to these findings, the applicant’s written and oral evidence were consistent and persuasive, with the applicant describing at hearing, for example, that, if she was returned to Malaysia, “my life will be worthless, I would be living a life not true to what I believe”, “I can’t do anything to show people my true self”, “I would be living in fear, because I would be scared that they would find out” and “they will hate me…they will think it is disgusting…if I am open to my true self over there, my family will kill me, they will be very angry, they will beat me up. Not only them, the community will beat me up. They will think that I have a mental problem…the police also will arrest me…they will jail me and I will be whipped”. The applicant’s evidence was also corroborated by her witness who described that the applicant ‘came out’ to the witness and that, previously, “it was not something that she had been able to share with anyone.”
Real chance
This past harm, experienced by the applicant, in the form of the threat of being beaten, killed, imprisoned, and punished, provides a strong indication that the applicant faces a real chance of again being subjected to such harm on return to Malaysia or in the reasonably foreseeably future.
This finding is also support by the assessment of Australia’s Department of Home Affairs and Trade (DFAT) and credible, up-to-date country information. In June 2024, DFAT concluded that; “LGBTIQA+ people who are also Malay/Muslim, poor, transgender or live in rural areas face a high risk of official and social harassment, discrimination and family and/or societal violence”, with official harassment and discrimination including being subjected to prosecution and ‘re-education’[7]. The applicant in this matter is Malay/Muslim and from a poor and rural background (as above).
Country information confirms that Muslim women who identify as lesbians face harm from the Malaysian authorities in the form of imprisonment, caning, arbitrary detention, and police violence. All same-sex sexual acts are illegal in Malaysia[8]. These acts are criminalised in the federal Penal Code[9], applicable to all women across Malaysia.
For Muslim women, such as the applicant, these acts are also illegal under state-based syariah law through a range of offences including musahaqah, sexual relations between women[10]. There are fifty-two state-based syariah laws that make same-sex acts illegal across Malaysia[11]. The number of these laws is increasing, with eight new laws of this nature introduced across three States of Malaysia from 2019 until 2022[12].
Musahaqah and four other categories of LGBTIQA+ conduct are illegal in the applicant’s home State of Sabah. Sabah and Melaka have the broadest prohibitions of LGBTIQA+ conduct of the fourteen (of seventeen) Malaysian states and federal territories analysed by Queer Lapis[13].
These laws, particularly the state-based syariah laws, are enforced against Muslim women in Malaysia with two women being caned for attempting musahaqah in 2018[14]. In addition to finalised prosecutions, investigations into syariah offences based on LGBTIQA+ conduct are “reasonably common.”[15] For example, in January and February 2022 alone, four women were arrested for syariah offences arising from actual or suspected lesbian conduct[16]. These investigations lead to risks of arbitrary detention[17], police violence including in custody[18] and the ‘outing’ of lesbian women to their family and communities and the accompanying risk of violence and other ill-treatment at their hands (as below).
Muslim women who identify as lesbians also face forced conversion therapy by the Malaysian authorities[19]. The Malaysian authorities have confirmed that 220 people were subjected to such therapy in 2023[20]. Non-government sources report that at least 2,000 people have been subjected to these therapies which “use an Islamic psychospiritual approach, which employs a combination of shame, religious guilt, incentives, pseudo-science, peer pressure, and the weaponisation of sex work and HIV to reinforce the notion of sin” [21]. These therapies are categorised as involuntary or coercive medical or psychological practices by the United States’ Department of State[22].
In addition to harm from the authorities, lesbian women in Malaysia face familial and societal violence. Lesbians who are Muslim and from poor and rural backgrounds, such as the applicant, are assessed as being at “high risk” of such violence by DFAT[23], which is described by the United States’ Department of State as “common.”[24] Familial and societal violence against lesbians and other LBT woman in Malaysia include hate crimes, murder, sexual violence, and domestic violence[25]. Lesbians are also sometimes confined to their family homes and, particularly in the applicant’s home area of Sabah, commonly forced to marry[26]. Once married, a Muslim women in Malaysia, such as the applicant, is required by syariah law to obey the lawful wishes or commands of her husband[27] and is vulnerable to family violence[28], which is a prevalent in Malaysia and in relation to which the authorities discriminatorily withhold protection[29]. Discrimination in employment, housing, and access to government services for LGBTIQA+ individuals has also been reported[30].
It has been reported that data and evidence relating to the experience of LGBTIQA+ women in Malaysia are especially lacking[31]. Consequently, it is likely that the above analysis does not fully capture the scale of acts of harm against lesbian women in Malaysia.
In these circumstances, the Tribunal is satisfied that, as a Muslim/Malay women from a poor and rural background, there is a real chance, as required by section 5J, that the applicant will face imprisonment, caning, arbitrary detention, police violence and involuntary or coercive medical or psychological practices and discriminatory denial of access to state services at the hands of the Malaysian authorities and familial and societal violence, including through family violence within a forced marriage, as well as discrimination in employment and housing on her return to[Town 1], Malaysia now and in the reasonably foreseeable future if she were to openly express herself as a lesbian.
Serious harm
The Tribunal is satisfied that imprisonment, caning, arbitrary detention, police violence and involuntary or coercive medical or psychological practices by the State and familial and societal violence, including through family violence within a forced marriage are significant physical and psychological ill-treatment and threats to the applicant’s liberty and, considered both individually and cumulatively, constitute serious harm as required by s5J(5) of the Act.
In relation to imprisonment and caning, the Tribunal is satisfied that this is not the application of a law of general application. The laws against LGBTIQA+ conduct in Malaysia have a discriminatory intent. They are targeted at members of the LGBTIQA+ community. That discrimination is not appropriate and adapted to achieving a legitimate object of the Malaysian State.
However, the Tribunal has found that the applicant would not express her identity as a lesbian in any way on return to Malaysia because she fears harm on this basis. In these circumstances, it is threat of such harm that must be considered. The Tribunal is satisfied that the threat of these forms of harm, should the applicant not conceal her sexuality, constitutes the serious harm that the applicable would face on return.
The applicant also made claims relating to workplace discrimination in the form of unlawful dismissal and discriminatory failure to promote, as well as discrimination in schools and shopping malls. The Tribunal is not satisfied that these forms of harm rise to the level of serious harm including that the applicant has not asserted that such discrimination would threaten her ability to subsist.
Refugee reason – particular social group of lesbians
The Tribunal is satisfied that the applicant belongs to a particular social group in Malaysia of lesbians. Lesbians satisfies the relevant legislative requirements in s5L as;
a.All members of the group share the characteristics of their sexuality and their gender,
b.On return, the applicant would share all of those characteristics,
c.Each characteristic is immutable and so fundamental to member’s identity that they should not be forced to renounce it, and
d.These shared characteristics are not a fear of persecution.
The Tribunal is satisfied that the harm that the applicant faces on return would be perpetrated against the applicant by the Malaysian authorities, her family, and members of the community, because she is a lesbian. The essential and significant reason that the applicant faces harm is because of her membership of this particular social group (s5J(1)(a)) and s5J(4)a)). Further, the conduct is both systematic and discriminatory (s5J(4)(c )).
Internal relocation
The Tribunal is satisfied that harm faced by the applicant extends to all areas of Malaysia as required by 5J(1)(c)).The Tribunal acknowledges that the relevant report by the DFAT sets out that the level and frequency of discrimination against LGBTIQA+ individuals in Malaysia differs according to geographic location and that some people who identify as LGBTIQA+ may move to large urban centres to avoid attention[32]. However, musahaqah remains an offence in Kuala Lumpur, for Muslim women such as the applicant, punishable by up to three years imprisonment and six strokes of the cane[33]. In light of this and the country information set out above, the Tribunal is satisfied that, while the risk of harm in Kuala Lumpur and other large urban centres may be less than that in the applicant’s home area of Sabah, the applicant nonetheless continues to face a real chance of serious harm as a lesbian in Kuala Lumpur and all areas of Malaysia.
Effective Protection
As the Malaysian State will be a perpetrator of the harm against the applicant, the Tribunal is satisfied that effective protection is not available from that State in relation to harm by the State and will be discriminatorily withheld in relation to harm by non-State actors. The Tribunal is satisfied that any attempt by the applicant to access State protection in relation to harm from non-state actor would be fruitless, with Malaysia’s Prime Minister and other prominent politicians making unequivocal statements that identifying as LGBTIQA+ is unacceptable and perverse[34] and country information documenting that the Malaysian police condone violence by non-state actors against lesbians and others from the LGBTQIA+ community[35]. Further, any such attempt by the applicant to secure protection from the State could expose her to persecution by the State[36]. Accordingly, the Tribunal is satisfied that effective protection is not available to the applicant (s5J(2) and s5LA).
Other considerations
The Tribunal is also satisfied that the applicant cannot be expected to take reasonable steps to modify her conduct by concealing her identify as a lesbian as this would conflict with a characteristic that is fundamental to her identity and is immutable (s 5J(3)).
The Tribunal is satisfied that the applicant has come out as a lesbian and started to express her identity as a lesbian in Australia because of her genuine sexual identity and not for the sole purpose of strengthening her protection claims (s5J(6)).
The Tribunal is satisfied that s 36(3) does not apply to the applicant.
CONCLUDING PARAGRAPHS
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).
Having concluded that the applicant meets the refugee criterion in s 36(2)(a), the Tribunal has not been required to consider the alternative criterion in s 36(2)(aa).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
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.
…

[1] ‘LGBT: An evaluation of Shariah Provisions and The Laws of Malaysia and Nigeria’, GJAT, Vol 8 Issue 1, Ashgar Ali Ali Muhammed and Yusuff Jelil Amuda, June 2018.

[2] ‘[Town 1]’, Department of Statistics Malaysia, 2020. Available at - [Town 1 area data]

[3] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.55].

[4] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.147] - [3.148].

[5] The witnesses’ identity was confirmed at hearing through the citing of a certified copy of her driver’s licence.

[6] [App 2 details]

[7] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.148].

[8] ‘2023 Country Report on Human Rights Practices: Malaysia’, United States’ Department of States, 23 April 2024. Available at 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.126]; ‘LGBTQ Legal Guide: What laws are out to catch you?’, Queer Lapis, undated. Available at ‘LGBT: An evaluation of Shariah Provisions and The Laws of Malaysia and Nigeria’, GJAT, Vol 8 Issue 1, Ashgar Ali Ali Muhammed and Yusuff Jelil Amuda, June 2018. See in particular s377D (outrages against human dignity) of the Penal Code. Available here

[10] ‘LGBTQ Legal Guide: What laws are out to catch you?’, Queer Lapis, undated. Available at ‘LGBT: An evaluation of Shariah Provisions and The Laws of Malaysia and Nigeria’, GJAT, Vol 8 Issue 1, Ashgar Ali Ali Muhammed and Yusuff Jelil Amuda, June 2018.

[11] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.127].

‘LGBTQ Legal Guide: What laws are out to catch you?’, Queer Lapis, undated. Available at 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.131].

[15] DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.131].

‘2023 Country Report on Human Rights Practices: Malaysia’, United States’ Department of States, 23 April 2024 Available at ‘2023 Country Report on Human Rights Practices: Malaysia’, United States’ Department of States, 23 April 2024 Available at

[22] ‘2023 Country Report on Human Rights Practices: Malaysia’, United States’ Department of States, 23 April 2024 Available at DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.148].

[24] ‘2023 Country Report on Human Rights Practices: Malaysia’, United States’ Department of States, 23 April 2024 Available at Jejaka, Justice for Sisters, Legal Dignity, et al. (authors), CEDAW (ed. or publisher): NGO CEDAW Shadow Report on Lesbian, bisexual, queer, transgender and intersex (LBQTI) women for the Malaysian Government’s Review by the CEDAW Committee, at the 88th CEDAW Session in May 2024, 23 April 2024 at p15.
DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.138].

[27] ‘Malaysia: Overview of Family Law and Practices’, Musawah For Equality in the Family, 22 February 2022 at p4. Available at DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.115]. Jejaka, Justice for Sisters, Legal Dignity, et al. (authors), CEDAW (ed. or publisher): NGO CEDAW Shadow Report on Lesbian, bisexual, queer, transgender and intersex (LBQTI) women for the Malaysian Government’s Review by the CEDAW Committee, at the 88th CEDAW Session in May 2024, 23 April 2024 at p15
‘2023 Country Report on Human Rights Practices: Malaysia’, United States’ Department of States, 23 April 2024 Available at DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.131]. at [3.117] – [3.125].

[30] ‘2023 Country Report on Human Rights Practices: Malaysia’, United States’ Department of States, 23 April 2024 Available at

[31] Jejaka, Justice for Sisters, Legal Dignity, et al. (authors), CEDAW (ed. or publisher): NGO CEDAW Shadow Report on Lesbian, bisexual, queer, transgender and intersex (LBQTI) women for the Malaysian Government’s Review by the CEDAW Committee, at the 88th CEDAW Session in May 2024, 23 April 2024 at 3, 7.
DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.147], [5.25].

[33] s26 Masahaqah, Syariah Criminal Offences (Federal Territories) Act 1997. Available at Syariah Criminal Offences (Federal Territories) Act 1997.

[34] ‘Human Rights Watch: World Report 2025 – Malaysia’, Human Rights Watch, 16 January 2025 at p407. Available at ‘2023 Country Report on Human Rights Practices: Malaysia’, United States’ Department of States, 23 April 2024 Available at

[35] ‘2023 Country Report on Human Rights Practices: Malaysia’, United States’ Department of States, 23 April 2024 Available at Jejaka, Justice for Sisters, Legal Dignity, et al. (authors), CEDAW (ed. or publisher): NGO CEDAW Shadow Report on Lesbian, bisexual, queer, transgender and intersex (LBQTI) women for the Malaysian Government’s Review by the CEDAW Committee, at the 88th CEDAW Session in May 2024, 23 April 2024 p15

Actions

Download as PDF Download as Word Document

Citations

2205756 (Refugee) [2025] ARTA 1526

Cases Citing This Decision

Cases Cited

Statutory Material Cited