2205998 (REFUGEE) [2025] ARTA 2208 (2 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2205998
Tribunal:Sue Zelinka
Date: 2 September2025
Place:Sydney
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 02 September 2025 at 3:42pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual men – people living with HIV/AIDS – access to HIV medication – employment – health screening – fear of forced conversion therapy – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Applicant S v MIMA (2004) 217 CLR 387
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 20 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 30 July 2018. The delegate refused to grant the visa on the basis that he not satisfied there is a real chance the applicant would experience persecution, involving serious harm, due to being PLHIV [person living with HIV], homosexual in Malaysia or person with poor mental health including symptoms of depression and anxiety in Malaysia, either for these individual reasons or cumulative.
The applicant appeared before the Tribunal on 25 August 2025 to give evidence and present arguments. 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.
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…
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- AGLC
- 2205998 (Refugee) [2025] ARTA 2208
- Case
- [2025] ARTA 2208
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CaseChat Overview and Summary
The applicant, a [age]-year-old man of Malay ethnicity and the Islamic faith, sought a protection visa in Australia, citing persecution in Malaysia due to his homosexuality and status as a person living with HIV (PLHIV). The Refugee Review Tribunal reviewed the case and considered the evidence presented by the applicant, including submissions from his treating doctor and social worker, as well as country information assessments from the Department of Foreign Affairs and Trade.
The legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution if returned to Malaysia, and if so, whether this fear met the definition of a refugee under the Migration Act. The Tribunal had to determine whether the applicant’s fear of persecution was real, serious, and related to a protected ground, and whether there were any measures he could take to avoid persecution.
The Tribunal found that the applicant would face a real chance of serious harm in Malaysia due to his membership in two particular social groups: LGBT people and PLHIV. For LGBT individuals, the Tribunal accepted evidence that the applicant would likely be forced into conversion therapy, which poses significant mental and physical harm. Additionally, as a PLHIV, the applicant would struggle to access consistent and effective medical treatment, risking his health and well-being. The Tribunal concluded that the societal discrimination and lack of access to healthcare in Malaysia would result in serious harm to the applicant, meeting the criteria for a well-founded fear of persecution. The Tribunal also noted that the applicant could not reasonably modify his behaviour to avoid persecution without altering his sexual orientation or concealing his true sexual orientation, which is protected under the Act.
Consequently, the Tribunal found that the applicant had a well-founded fear of persecution for reasons of his membership in particular social groups, fulfilling the definition of a refugee. The decision to refuse the protection visa was set aside, and the matter was remitted for reconsideration, in accordance with the Migration Act.
The legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution if returned to Malaysia, and if so, whether this fear met the definition of a refugee under the Migration Act. The Tribunal had to determine whether the applicant’s fear of persecution was real, serious, and related to a protected ground, and whether there were any measures he could take to avoid persecution.
The Tribunal found that the applicant would face a real chance of serious harm in Malaysia due to his membership in two particular social groups: LGBT people and PLHIV. For LGBT individuals, the Tribunal accepted evidence that the applicant would likely be forced into conversion therapy, which poses significant mental and physical harm. Additionally, as a PLHIV, the applicant would struggle to access consistent and effective medical treatment, risking his health and well-being. The Tribunal concluded that the societal discrimination and lack of access to healthcare in Malaysia would result in serious harm to the applicant, meeting the criteria for a well-founded fear of persecution. The Tribunal also noted that the applicant could not reasonably modify his behaviour to avoid persecution without altering his sexual orientation or concealing his true sexual orientation, which is protected under the Act.
Consequently, the Tribunal found that the applicant had a well-founded fear of persecution for reasons of his membership in particular social groups, fulfilling the definition of a refugee. The decision to refuse the protection visa was set aside, and the matter was remitted for reconsideration, in accordance with the Migration Act.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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 EVIDENCEBackground The applicant is [an age]-year old man of Malay ethnicity and the Islamic faith. He arrived in Australia in May 2018 and lodged a protection visa two months later. The claim that he made in the protection visa application and spoke to at a departmental interview in November 2021 was simply that he was gay, and that this is illegal in Malaysia and entails many adverse consequences. In January 2022 the applicant got a new lawyer who submitted further claims: that the applicant was a person living with HIV (PLHIV) and that this involved a further suite of adverse consequences in Malaysia. The lawyer attached letters outlining the applicant’s condition, and supporting him, from his treating doctor and the social worker at [Health Service 1] which is a specialised clinic within the public health system. In a post-interview submission dated February 2022, the applicant stated that his HIV was being successfully managed with a drug called Biktarvy which was not available in Malaysia. He submitted that the attitudes of the health professionals in Malaysia were discriminatory towards homosexuals; as was the attitude of the State which had enacted a raft of laws against homosexual acts and which offered ‘conversion therapy’ to change homosexuals. He also added that his family were practising Sunni Muslims and would follow the anti-homosexual attitudes that were evident in syariah (sharia) law.To the Tribunal Prior to the hearing, the Tribunal received a submission consisting of a statutory declaration from the applicant dated 19 August 2025, a covering letter from a solicitor from [Agency 1] giving the background of this case, a discussion of the delegate’s findings, and a good deal of relevant country information from up-to-date and reliable sources. There was also an update on the applicant’s medical condition from the same doctor at the [Health Service 1] mentioned above; some screen shots of a conversation between the applicant and his father, and another with a casual contact on Grindr.The applicant in Malaysia At hearing, the Tribunal established that the applicant had been ‘different’ since schooldays when he was called padang, meaning ‘ladyboy’ (or effeminate male). This had ceased by the time he went to vocational college where he did [named course]. This was a milieu with an all-male student population and the applicant effectively hid his homosexuality. He lived in a college student hostel and said he did not have any social life. However, in his final year at college, the applicant did meet a man on a gay dating app called Grindr and began a covert relationship with him. When the applicant completed college, his friend ([Friend A]) found him a job in the same [business 1] where he worked.
Decision
Reasons for decision
The Tribunal notes evidence from a relatively recent study of conversion therapy in four Asian countries including Malaysia, a study endorsed by the AIDS Data Hub for Asia Pacific, UNAIDS, UNICEF and the WHO:Conversion therapy practices (CTPs) refer to any sustained effort intended to “modify a person’s sexual orientation, gender identity, or gender expression”. According to the International Rehabilitation Council for Torture Victims, CTP can include talking therapy, ritual or religious cleansing, behavioural conditioning, such as being asked to dress or walk in a certain way, and/or beating or other forms of “corrective” violence. All these forms of CTPs are prevalent in Malaysia. CTPs in Malaysia are perpetrated by parents, school systems, religious institutions, and the state, which disguise CTPs as religious education programmes (such as the Mukhayyam programme) or programmes for hijrah diri (self-pilgrimage). The same report also states: The American Medical Association has stated that conversion therapy and “efforts to” convert someone’s sexual or gender identity “represent a significant risk of harm”. The Royal College of General Practitioners has asserted that “being LGBT is not a disease, it is not a mental illness and it doesn’t need a ‘cure’.”[6][6] Asia Pacific Transgender Network, Conversion Therapy Practices in Malaysia, 2021, pp. 4 and 10, at type="1">The Tribunal accepts the advice that conversion therapy represents a significant risk of harm, harm which may be mental or physical or both. If the applicant’s presence in Malaysia is known to his parents, there is a real chance that he will be forced to undergo conversion therapy and therefore be subject to serious harm.If the applicant were to return to Malaysia and live alone without contacting his parents, he would need to find a job quickly to become self-supporting. The Tribunal notes recent DFAT advice which supports claims made by the applicant: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 (the HIV prevalence rate for gay men in Malaysia is around 20%). [7][7] DFAT, Country Information Report: Malaysia. 24 June 2024, para. 3.135.However, as the applicant agreed, there are a number of less secure or lesser paid jobs which do not require a health check, such as the job in [business 1] which the applicant had before finding work in his chosen vocation. The Tribunal is not satisfied that the pre-employment health check is a complete barrier to employment; or not to the extent that the applicant would be unable to subsist. All independent evidence indicates societal discrimination in Malaysia against gay men like the applicant and LGBT+ people in general. For example, a 2021 study found that about 60% of Malaysians thought that same-sex attraction was not morally justifiable and rejected having lesbians or gay men as neighbours. [8][8] Tan, Lee and Cheong, “Current research involving LGBTQ people in Malaysia: A Scoping Review Informed by a Health Equity Lens”, Journal of Population and Social Studies, 2021, at submission on file).The Tribunal finds that the applicant would suffer discriminatory treatment in day-to-day life and in employment if he were to return to Malaysia. However, the real chance of serious harm arises from his father’s commitment to send the applicant to conversion therapy. In this, the father has the backing of both the church (Islam) and the State (the Malaysian government). Against these forces, the applicant would be fairly powerless to resist: he would have to sever all contact with his family and those connected to the mosque which his family attends. He would not be able to avail himself of any family assistance if he were unable to work because of illness and/or discrimination against PLHIV. The Tribunal finds that there is a real chance of serious harm befalling the applicant if he were to return to his home place in Malaysia and the essential and significant reason for this harm is his membership of a particular social group constituted by LGBT people in Malaysia.Harm as person living with HIVThe Tribunal considered the question of future harm to the applicant as a person living with HIV. The Tribunal accepts that the applicant has to maintain a regular and ongoing relationship with a doctor, even if for nothing more than scripts for prescription medicines. The applicant has been away from Malaysia for seven years so has no regular doctor there. If the applicant’s family have a ‘family doctor’ whom they all consult, the applicant will not be able to attend that one because of his estrangement from the family. The applicant will have to begin the process of finding his own doctor, or he will have to rely on public health clinics or hospitals. This process will take time, and time away from regular appointments will be injurious to his condition according to his current treating doctor. The Tribunal places weight on the letter from the applicant’s doctor in Australia, both because he has been the treating doctor for the whole length of time that the applicant has been living with HIV, and also because the doctor is a specialist in this field and works in a specialised clinic. This doctor has written about the problem of interruptions in treatment and the lack of access to Biktavy, the drug which is the best treatment for the applicant, if the applicant were to be removed to Malaysia (see paragraph 25 above). The doctor summarised in the following way:In returning to Malaysia, a country where there are significant religious and cultural factors that contribute to stigmatising, discriminatory, unsafe and unsupportive environments for members of the LGBTI community, there is significant risk that [the applicant] will experience stigma and discrimination that will impact on his ability to consistently remain in care and remain optimally adherent to his medication.[9][9] Letter from [named doctor], Staff Specialist, [Health Service 1], dated 15 August 2025 on Tribunal’s fileThe doctor also noted the ancillary health services provided at his specialised centre including physical health care and psychological support. He said that if the applicant were to be removed, ‘the impact of the rupture in these relationships and connections on his emotional and physical wellbeing would be very significant’. Independent evidence based on fairly recent studies in Malaysia have found that only 55% of people diagnosed as HIV positive are receiving treatment, one reason being the “stigmatising attitudes expressed by health care providers” including over 50% of physicians who discriminate against patients with HIV.[10] [10] AIDS Map, Half of Malaysian doctors admit to some discrimination against patients with HIV, 16 Jan 2019, at (Applicant’s submission on file). The problems for the applicant in returning to Malaysia as a PLHIV are significant. According to his doctor here, he will not have ongoing and continuous access to the drug which is best suited to him. There are other options available in Malaysia, including some dispensed freely or cheaply through the public health system, but there are barriers in accessing this treatment. The applicant will have to find a doctor which, the evidence shows, has a degree of difficulty given the doctors’ general unwillingness to treat HIV. There will be certainly a break in his ongoing treatment and when and if it resumes it will be less than the all-round treatment he receives in Australia. There is a real chance he will suffer one of the number of possibilities that his doctor has outlined in the submission to the Tribunal about cessation or changes of treatment (see paragraph 25 above). On the evidence before it, the Tribunal is satisfied that there is a real chance that the applicant will suffer serious harm if he returns to Malaysia and the essential and significant reason for this harm is his membership of a particular social group constituted by PLHIV. Modify behaviour to avoid persecutionThe Migration Act states that “a person does not have a well-founded fear of persecution if [he] could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would: … [require him to] alter his sexual orientation or gender identity or conceal his or her true sexual orientation” (see Attachment below at s 5J(3)(c)(vi)). The Tribunal notes that the applicant has been living an openly gay life in Australia, having had a significant relationship which lasted some years, attending gay saunas, using apps to seek out gay contacts, and generally participating in the gay scene. He has been closely involved with a sexual health clinic since 2021 and has never had to conceal his sexual orientation from any of the medical and allied health staff. He has never felt that they treated him in a disapproving or discriminatory way. If the applicant were to return to Malaysia, the applicant would have to not just ‘modify his behaviour” but change completely in order to avoid persecution. The Tribunal uses the word persecution because it is satisfied that he would suffer harm greater than societal discrimination: as discussed earlier, there is a real chance that he would be sent to conversion therapy, a real chance that he could not find consistent employment and a real chance that he could not get ongoing and effective treatment for his HIV, all of which have serious consequences.Having regard to all the evidence before it, the Tribunal finds that there is a real chance that the applicant will suffer serious harm in Malaysia for reason of his membership of two different but in this case overlapping particular social groups. The first is constituted by LGBT people in Malaysia and the second by people living with HIV. The cumulative impact gives rise to a well-founded fear of persecution. The fear of persecution holds for all areas of the country and cannot be avoided by expecting the applicant to modify his behaviour. ConclusionThe Tribunal finds that the applicant has a well-founded fear of persecution for one of the reasons set out in s 5J(1)(a) and that he meets the definition of refugee in s sH(1)(a).DECISIONThe Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.Hearing: 25 August 2025Representative: Mr Frederick JohnstonATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…
Ratio Decidendi
Legal Principle Established
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.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is [an age]-year old man of Malay ethnicity and the Islamic faith. He arrived in Australia in May 2018 and lodged a protection visa two months later. The claim that he made in the protection visa application and spoke to at a departmental interview in November 2021 was simply that he was gay, and that this is illegal in Malaysia and entails many adverse consequences. In January 2022 the applicant got a new lawyer who submitted further claims: that the applicant was a person living with HIV (PLHIV) and that this involved a further suite of adverse consequences in Malaysia. The lawyer attached letters outlining the applicant’s condition, and supporting him, from his treating doctor and the social worker at [Health Service 1] which is a specialised clinic within the public health system. In a post-interview submission dated February 2022, the applicant stated that his HIV was being successfully managed with a drug called Biktarvy which was not available in Malaysia. He submitted that the attitudes of the health professionals in Malaysia were discriminatory towards homosexuals; as was the attitude of the State which had enacted a raft of laws against homosexual acts and which offered ‘conversion therapy’ to change homosexuals. He also added that his family were practising Sunni Muslims and would follow the anti-homosexual attitudes that were evident in syariah (sharia) law.To the Tribunal Prior to the hearing, the Tribunal received a submission consisting of a statutory declaration from the applicant dated 19 August 2025, a covering letter from a solicitor from [Agency 1] giving the background of this case, a discussion of the delegate’s findings, and a good deal of relevant country information from up-to-date and reliable sources. There was also an update on the applicant’s medical condition from the same doctor at the [Health Service 1] mentioned above; some screen shots of a conversation between the applicant and his father, and another with a casual contact on Grindr.The applicant in Malaysia