2206855 (refugee) - [2024] ARTA 698

2206855 (REFUGEE) [2024] ARTA 698 (4 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2206855
Tribunal:David McCulloch
Date:4 December 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 04 December 2024 at 11:29am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Religion – Sunni Muslim – sexual orientation – homosexual – never suffered any harm in Malaysia as a result of being gay – lack of any corroborative evidence – not satisfied that the applicant is gay – not satisfied that the applicant faces a real risk of serious or significant harm – credibility concerns – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
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 21 April 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant, who claims to be a national of Malaysia, applied for the visa on 30 November 2018. The delegate did not conduct an interview with the applicant. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 27 November 2024 at 10.30 am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, protection criteria are met. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Information Report – Malaysia, 24 June 2024.
Background and claims
The government movement record in relation to the applicant indicates that he first arrived in Australia on [date] October 2016 on a 601 Electronic Travel Authority visa. The applicant departed Australia on [date] January 2017. He returned for the last time on [date] September 2018 again on a 601 Electronic Travel Authority visa. The protection visa was applied for on 30 November 2018.
The application forms for the protection visa indicate the following. The applicant was born on [date]. The applicant was born in [a town], Kelantan. The applicant is a Sunni Muslim. The applicant has never been married or in the defecto relationship. The only family member listed by the applicant is his mother born on [date]. The applicant lists finishing high school in December 1992 in Kelantan. The only employment listed by the applicant is a job from January 2008 until ‘current’ as [a position] for the [Company 1] in Kuala Lumpur. The only address listed by the applicant is one lived at from January 2000 until ‘current’ in Salangor.
In terms of substantive claim to protection, the applicant indicates that he left Malaysia because of his sexual orientation. He has been homosexual since high school. He found it difficult to live as a homosexual in Malaysia. He considers that on return he will receive life-threatening treatment. There will be degrading treatment and discrimination and hardship earning a living. In terms of harm experienced in Malaysia he refers to receiving degrading words. He refers to a car tire being punctured and vandalised. He refers to lack of understanding and moral support from family members. He refers to constantly humiliation and degrading jokes from a co-worker. He refers to continuous mocking and isolation from friends. The applicant to homosexuality being taboo with a lack of government and community support.
Independent information
DFAT Country Information Report – Malaysia, 24 June 2024 provides as follows (underlining added):
Sexual Orientation and Gender Identity
3.126    As a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent. The Malaysian Penal Code defines ‘carnal intercourse against the order of nature’ as involving the introduction of the penis into another person’s anus or mouth (to the point of penetration). Oral heterosexual sex performed upon a man is also an offence, although DFAT is not aware of any prosecutions for this act; oral sex performed upon a woman is not an offence.
3.127    Across Malaysia there are 52 laws that criminalise different forms of LGBTQIA+ behaviour. Prosecutions have taken place under these laws, including under Section 377A/377B (Unnatural Offences) of the Penal Code, which includes penalties of whipping and up to 20 years in prison. Numerous state-level syariah-based laws prohibit same-sex relations and non-normative gender expression. In February 2021, a nine-judge panel of the Federal Court unanimously declared that a Selangor syariah law criminalising ‘unnatural sex’ was unconstitutional. This means that the federal law stands, but that State laws against same-sex sexual activity are invalid. In-country sources reported in 2022 that three states added new laws relating to LGBTQIA+ people based on syariah over the last five years.
3.128    While government stances on LGBTQIA+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and penal code offences. These laws prohibit males cross-dressing and/or presenting as women, and in some cases, females cross-dressing and/or presenting as men.
3.129    Successive Malaysian Prime Ministers have made anti-LGBTQIA+ statements. Most recently, in January 2023, Prime Minister Anwar said recognising LGBTQIA+ identities and behaviours ‘will not happen, and God willing under my administration this is not going to happen.’ In-country sources told DFAT that the environment for LGBTQIA+ people had not improved under the Anwar Government.
3.130    JAKIM and other state level religious authorities have occasionally conducted raids on LGBTQIA+ events. On 30 October 2022, RMP and the Federal Territories Islamic Religious Department (JAWI) raided a Halloween event attended by members of the LGBTQIA+ community in Kuala Lumpur and arrested at least 20 people. Malaysian NGO Justice for Sisters reported in 2022 that 24 people were being investigated for offences including: being males posing as women; ‘encouraging vice’; and ‘indecent acts’ in a public place. State officials have conducted raids on private premises, sometimes accompanied by members of the RMP. Some in-country sources reported that authorities conducted such raids as a means of creating income through extortion and blackmail.
3.131    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.
LGBTQIA+ ‘Conversion Therapy’
3.132    Authorities at federal and state level have promoted so-called ‘rehabilitation’ or ‘re-education’ programs aimed at changing sexual orientation or gender identity, also known as conversion therapy. Although these programs are primarily aimed at Muslims, Christians are also targeted. According to the US State Department, as of June 2021 at least 1,733 people had attended such programs. In-country sources reported that conversion programs were ‘voluntary’ in the sense that they were ‘not court-ordered,’ but in practice people were often coerced to attend by authorities and their communities. According to multiple sources, the Terengganu Government has run a ‘re-education boot camp’ or ‘behaviour corrective program’ in Besut for teenage males since 2010, where boys identified as ‘effeminate’ are sent for physical training and religious and motivational classes, while the Negeri Sembilan Religious Affairs Department held a two-day camp as part of the state’s Action Plan Against Social Ills of LGBT 2017-2021.
3.133    LGBTQIA+ issues are considered taboo in Malaysia, particularly among Muslims. Online abuse against people who raise LGBTQIA+ issues online is common. NGO Justice for Sisters reported in 2023 that doxxing of LGBTQIA+ people in the media and social media was also common.
3.134    Authorities regularly ban or otherwise restrict LGBTQIA+ material. In July 2023, British band ‘The 1975’ had its set in Kuala Lumpur’s Vibes Festival cut short after a same-sex kiss on stage between two band members. The Ministry of Communication subsequently cancelled the rest of the Vibes Festival and banned the 1975 from returning to Malaysia. SUHAKAM released a press statement condemning the ‘unacceptable behaviour’ by the 1975’s lead singer and noted that his behaviour ‘caused the event to be cancelled.’ The Malaysian Government has also banned international films with LGBTQIA+ elements, such as Thor: Love and Thunder and Lightyear.
Gay Men and Men Who Have Sex With Men
3.135    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 (the HIV prevalence rate for gay men in Malaysia is around 20 per cent). In 2023, the Malaysian Ministry of Health identified men having sex with men as the main vector for HIV transmission, superseding intravenous needles. Pre-exposure prophylaxis (PreP) is available in public clinics, although there are campaigns against it due to its association with gay men.
3.136    In country sources reported in 2023 that an administrative circular was circulated in schools permitting caning of LGBTQIA+ students, framing it as a correctable ‘disorder’. In-country sources also reported cases of gay students being expelled from school for their sexuality. People stopped by police have sometimes had their phones checked for LGBTQIA+-related messages and dating apps such as Grindr. Such checks were reportedly particularly prevalent during COVID-19 pandemic lockdowns.
3.137    Domestic violence is also a serious problem within the gay community; where police are involved, gay men can face blackmail and extortion from police officers. Domestic violence legislation does not provide protection for same-sex couples (see Gender-Based Violence).
Lesbians
3.138    Lesbians and queer women are much less visible in Malaysia than other members of the LGBTQIA+ community. LGBTQIA+ activism in Malaysia has historically focused on HIV, as HIV was often the only issue considered ‘acceptable’ for government engagement. Accordingly, NGOs advocating for lesbians and queer women are less prominent and have less funding. Forced heterosexual marriages for lesbians are common, especially in Sabah. Lesbians in such marriages find it very difficult to obtain a divorce without outing themselves, especially if they are Muslim. In rural areas, families sometimes confine lesbians to the family home due to cultural stigma. Treatment of lesbians is worse for Muslim women as syariah criminalises sexual activity between women. In-country sources reported there were four arrests of Muslim women for syariah offences over two months alone in early 2022. While syariah offences only apply to Muslim women, they also have a large impact on non-Muslim lesbians by harming their relationship with authorities.
Transgender People
3.139    While cross-dressing is not technically illegal under civil law, state-level police have arrested transgender women under the Minor Offenses Act (1955) for public indecency and immorality, and under syariah-based laws against impersonating women. A transgender individual was permitted to change their name, sex marker, and related last digit on their MyKad in 2005, but this has not been repeated. The National Registration Department does not generally allow transgender people to access such changes. In 1983, the National Fatwa Council banned Muslims from undergoing sexual reassignment surgery (SRS). However, SRS remains available in some private medical centres in Malaysia.
3.140    In-country sources reported the increased visibility of transgender women makes them particularly vulnerable to raids by religious authorities and syariah court-ordered conversion counselling. Unlike government-run conversion camps, syariah court-ordered counselling is compulsory.
3.141    When placed in custody, transgender women are held in male custodial facilities. Numerous human rights organisations have reported state religious officials, corrections officers and fellow detainees have subjected transgender women to physical and/or sexual violence and degrading treatment while in custody. In-country sources reported transgender women were also denied access to public education upon transitioning, and often avoided seeking medical treatment in public hospitals due to the requirement that they are placed in male wards. Strict gender segregation in mosques means Muslim transgender women are often precluded from accessing places of worship in accordance with their preferred gender expression.
3.142    In-country sources reported that because Malaysia is a patriarchal society, it was easier for transgender men to wear jeans, for example, than for transgender women to wear women’s clothes, as doing so exposed them to violence and discrimination. There are very few job opportunities available for transgender women. Transgender women who do have jobs report difficulty accessing bathrooms of their identified gender. Lack of formal gender recognition means that MyKad only reflect birth sex, causing issues when applying for jobs, housing, and financial aid. Young transgender women are often rejected by their families and live on the streets. Many are employed in commercial sex work.
3.143    A ‘male person posing as a woman’ is a syariah offence in many states. Aspects of gender transition medical interventions may also constitute a criminal offence. A law in Kelantan state criminalises transgender people who undergo body modification, which may include breast implants. The offence targets the transgender person and potentially the medical provider. Transgender women struggle to access housing. Public housing is prioritised for married couples, and applications require financial documents which transgender people often do not have due to their lack of formal employment. Transgender women often struggle to access loans from banks, driving them to the informal sector and loan sharks.
3.144    In December 2018, a group of five people aged between 16 and 21 years violently attacked and killed a transgender woman in Klang (outside Kuala Lumpur). In January 2019, police arrested a 55-year-old man in the same location in relation to the death of a transgender woman who reportedly fell from a moving vehicle. The NGO Justice for Sisters reported at least two murders of transgender women between November 2019 and October 2020. A transgender woman was found dead in Johor in October 2023, with injuries to her head and face, and some social media users posted homophobic slurs and mocking comments in response to the news.
3.145    In October 2020, officers from the Kedah Islamic Religious Department (JAIK) raided a private birthday event attended by 30 transgender Malaysians. A JAIK spokesperson said all 30 attendees would be investigated under Section 36 of the Kedah Syariah Criminal Enactment (2014) and could face fines up to MYR 1,000 (AUD 320) and/or jail for six months. In 2021, Nur Sajat, a high-profile cosmetics entrepreneur and transgender woman, was charged with ‘dressing up as a woman at a religious event’ and ‘bringing Islam into contempt’ in the Shah Alam Syariah High Court. She pleaded not guilty. According to local media, Nur Sajat was arrested by the Selangor Islamic Religious Department (JAIS) in a violent fashion; those who arrested her were called in to give statements following her complaint of being ‘roughed up’. In February 2021, Nur Sajat went into hiding after failing to appear in court.
3.146    Transgender men are much less visible than transgender women; they often ‘pass’ as ‘cis men’ and consequently face fewer barriers to access to employment. Access to health care for transgender men can be difficult; hormonal treatment is more expensive than for transgender women. The ability of many transgender men to pass as cis men means that the levels of discrimination and harassment that they face are generally lower than that experienced by transgender women, although most are cautious to avoid being outed to continue living as their preferred gender.
3.147    The level and frequency of discrimination faced by members of the LGBTQIA+ community differs according to their sexual orientation and gender identity, socio-economic status, religion, geographic location, and degree of openness regarding their sexual orientation and gender identity. Well-educated urban LGBTQIA+ individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than poorer individuals in rural areas. In-country sources reported that people in Kuala Lumpur were generally more accepting of LGBTQIA+ people than in East Coast peninsular Malaysia or Sarawak and Sabah. In-country sources also told DFAT that most transgender individuals from Sarawak and Sabah relocated to Kuala Lumpur for employment and to escape discrimination.
3.148    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.[1]
[1] DFAT Country Information Report – Malaysia, 24 June 2024, pp. 32-35
Hearing, credibility, findings and assessment

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out: MIEA v Guo (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437
In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for [but this should not lead to] an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Malaysia, and accordingly his claims will be assessed against Malaysia.
The Tribunal has concerns, including significant concerns, with the applicant’s claims to be gay.
The applicant has not been consistent in terms of whether he has ever suffered difficulties in Malaysia as a result of being gay. As indicated in the applicant’s substantive claims for protection, the applicant claimed multiple instances of harm as a result of being gay. In contrast, in the Tribunal hearing the applicant on at least two occasions indicated that he never had problems in Malaysia as result of being gay. He referred more specifically to no difficulties occurring in two [workplaces] had worked at in Kuala Lumpur from 1991 until 2000 in the situation where some other co-workers knew that he was gay. The applicant indicated that there were also no difficulties as result of some workers knowing he was gay when working at the [Company 1] because they all worked as a family.
The applicant indicated that although he never had any problems, he was claiming protection because the government in Malaysia did not now support LGBT people.
The Tribunal put to the applicant that his written claims for protection set out a number of different instances of harm claimed in Malaysia as result of the applicant being gay. In response applicant indicated that it was true that his tire was punctured but he does not know the intention of the perpetrators. The applicant referred to some difficulty being faced being gay but that had not brought this up in the hearing because he wanted to leave difficulties behind him.
The Tribunal does not accept in the context of an application for a protection visa that there would be a reluctance to bring up harm faced integral to claims for protection. The very opposite. The multiple occasions of the applicant in the hearing stating that he never suffered any harm in Malaysia as a result of being gay directly contrary to written claims is significantly undermining of the applicant’s credibility.
The evidence of the applicant living as a gay man in both Malaysia and Australia was very limited. In significant respects did not have a ring of truth or plausibility including lack of detail and nuance that persuaded the Tribunal that the applicant was recounting events that actually happened. There is no supporting evidence at all as to the applicant’s sexuality from third parties or that would otherwise corroborate the applicant living as a gay man since 1991 in Malaysia and Australia. The applicant in hearing was given the opportunity to provide such supporting evidence but indicated that he was not in a position to do so.
The Tribunal asked the applicant about relationships he had in Malaysia from his time from realising he was gay in 1991 until coming to Australia for the last time in 2018. In response, the applicant indicated that nothing happened in terms of relationships on weekdays, just on weekends. The Tribunal asked what he meant by this, and he stated that on weekends they would go out looking for eligible partners and, if they were interested, the applicant would be too. The applicant was asked to provide more detail of his relationships. The applicant responded that they had sex.
The Tribunal asked the applicant if he had relationships that developed beyond sex into more intimate relationships. The applicant indicated that he had no more intimate relationships as work was difficult.
The applicant indicated that he had met three gay friends who were fellow workers in the [workplace] at which he worked. The Tribunal asked the applicant how he connected with them and knew that they were gay. In response the applicant indicated that it came up in conversation. The Tribunal questioned that this would naturally come up in conversation given the reviling of gay lifestyles in Malaysia. In response the applicant indicated that approbation towards homosexuality was not as prevalent at that time.
The negative attitude towards same-sex individuals in Malaysia as set out in the DFAT report has been a relative constant in Malaysia. If anything, negative attitudes have improved rather than got worse. The applicant’s evidence as to the manner of him coming to know other gay men in his [workplace] did not have a ring of truth to the Tribunal.
In the hearing, the applicant indicated that in Kuala Lumpur he had shared a house with six others who worked at the same [workplace]. The Tribunal asked the applicant if the other flatmates knew that he was gay. The applicant indicated that they did. The Tribunal asked the applicant if any of the other flatmates were gay, and the applicant indicated that one was.
The Tribunal asked applicant if the straight flatmates had any issues with the applicant’s sexuality. The applicant indicated that they had no difficulties. Similarly, as noted above, the applicant indicated that there were no difficulties from co-workers when he worked at two [workplaces] or from co-workers at the [Company 1] who knew that he was gay.
Given the indication from the independent evidence as to the significant reviling of same-sex relationships in Malaysia, evidence of no difficulties from flat mates and co-workers knowing the applicant was gay is not credible to the Tribunal. It is also inconsistent with written claims for protection indicating abuse of the applicant by co-workers.
The Tribunal noted to the applicant that he had lived in Malaysia from 1991 until 2018 as a gay man and queried whether he would be in a position to provide supporting statements from gay friends in Malaysia that would corroborate the applicant’s sexuality. The applicant indicated that he had searched for individuals on Facebook but was not successful in tracking anyone down that would be able to do this.
The lack of any corroborative evidence at all by the applicant as to his claimed sexuality in Malaysia is undermining of the truth of his claims in this respect, buttressing the thinness of his evidence in terms of the demonstration of his sexuality in Malaysia.
The Tribunal asked the applicant about his sexual and relationship history in Australia. The applicant referred to last having a sexual encounter five months ago but does not remember where he met the person. The applicant indicates that he has had multiple other casual encounters but no relationships beyond this. The applicant indicated that he sometimes he goes to [a location], Sydney but could not provide the name of any establishment that he attends. The most detail provided by the applicant in this respect was indicating he attended an establishment where there was a Malaysia performer.
The Tribunal asked the applicant where he connected with men, he had sexual encounters with. The applicant indicated that this mainly happened [on] the streets. The Tribunal asked the applicant if he is saying he would randomly meet came in on the streets. In response, the applicant indicates that this was correct and that there would be looks from other men which if positive would lead to a connection.
The Tribunal asked if he had gay friends in Sydney. He indicated that that he had some, but they have now gone missing. The Tribunal explored with the applicant the potential to provide evidence from third parties in Australia as to his sexuality. The response was that the applicant is not currently in connection with individuals who could provide this.
Similarly, to Malaysia, the thinness and lack of corroborative evidence provided by the applicant as to the progression and acting out for sexuality in Australia over the last six years is undermining of his claimed sexuality.
While the Tribunal accepts the potential for gay men to only have casual sexual encounters without more meaningful relationships, it is of some concern to the Tribunal that in his over [many] years as a gay man he has had not one relationship that has progressed beyond a casual encounter.
In summary, the inconsistency in evidence by the applicant as to whether he has ever suffered harm in Malaysia as a result of being gay is significantly adverse in considering credibility. This is buttressed by the other issues identified, particularly thinness and some implausible evidence in evidence of acting out of the applicant’s sexuality in Malaysia and Australia. Credibility concerns are reinforced by the lack of any corroborative evidence at all, such as statements from third parties or online communications with gay men.
Considering these credibility issues, the Tribunal is not satisfied that the applicant is a truthful or credible witness in relation to his claimed sexuality. The Tribunal is not satisfied that the applicant is gay. The Tribunal is not satisfied that the applicant was gay in Malaysia or suffered any harm in Malaysia as result. The Tribunal is not satisfied that there are individuals or groups in Malaysia that have an adverse interest in him as a result of his sexuality or for any other reason. The Tribunal is not satisfied that the applicant came to Australia fearing harm as a result of his sexuality and its non-acceptance by the Malaysian government. The Tribunal is not satisfied that on return to Malaysia the applicant would do so as a gay man. The Tribunal is not satisfied that the applicant faces a real risk of serious or significant harm in Malaysia for reasons of his sexuality as claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason set out in s.5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk of him suffering significant harm.
For the reasons given above, the Tribunal is not 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 does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature.
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant.
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee.
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution.
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith.
(ii)conceal his or her true race, ethnicity, nationality or country of origin.
(iii)alter his or her political beliefs or conceal his or her true political beliefs.
(iv)conceal a physical, psychological or intellectual disability.
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child.
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty.
(b)     significant physical harassment of the person.
(c)     significant physical ill‑treatment of the person.
(d)     significant economic hardship that threatens the person’s capacity to subsist.
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist.
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family.
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced.
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic.
(ii)the characteristic is so fundamental to a member’s identity or conscience; the member should not be forced to renounce it.
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, which controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act.
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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