2209195 (Refugee)

[2025] ARTA 1081

2209195 (REFUGEE) [2025] ARTA 1081 (8 JANUARY 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2209195

Tribunal:General Member M Tubridy

Date:8 January 2025

Place:Sydney

Decision:The Tribunal affirms the decisions under review.

Statement made on 08 January 2025 at 2:30pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – bisexual woman – harassed and ostracised by family and community, and child from previous marriage tortured – later evidence of acceptance by family and some friends, and of threats to family – long residence away from parents’ home area – late claim and evidence of being fined for immoral behaviour after being found in mixed group, and of media reports – one secret relationship with a woman, continuing after applicant came to Australia – no same-sex activity in Australia – late notification to department of marriage and child – member of family unit Australian-born child – formal requirements for registration of Malaysian citizenship – husband/father’s separate application for review in progress – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
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

1. This is an application for review of a decision made by a delegate of the Minister (the delegate) on 21 June 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants are a mother (the first named applicant and, for ease of reference: ‘the applicant’) and also her [Age]-year-old daughter (the second named applicant and, for ease of reference: [Miss A] or the applicant’s daughter). The applicants lodged their application for review with the Tribunal on 22 June 2022, and in doing so provided the Tribunal with a copy of the delegate’s 21 June 2012 decision. The Tribunal was then provided by the Department of Home Affairs (the Department) with a copy of the protection visa application which was lodged by the applicant on 23 January 2019 (along with its associated correspondence and documents) and also a further copy of the delegate’s 21 June 2022 decision. On 24 June 2022 the Tribunal emailed the applicants an acknowledgement that their application for review had been received. In doing so, the Tribunal also advised the applicants that if they wished to provide any further material or written arguments for the Tribunal to consider they should do so as soon as possible. Nothing further was received from the applicants in response to this.

3. On 11 January 2024 the Tribunal emailed the applicants and advised them that it had considered the material before it but was unable to make a favourable decision on this information alone, and they were invited to appear before the Tribunal on 16 February 2024 to give evidence and present arguments relating to the issues arising in their case. On 15 January 2018 the first named applicant submitted a completed ‘Response to hearing invitation’ form in which she indicated that: she and her daughter would both participate in the hearing; and: that she (the first named applicant) intended to provide documents (not specified) to the Tribunal seven days before the hearing (and on 7 February 2024 and also at the 16 February 2024 hearing the first named applicant provided several documents to the Tribunal); and: that she requested that the Tribunal take evidence from a [Mr B], her spouse and the father to her daughter, the relevance of which would be to establish that [Mr B] was a guardian (though on 16 February 2024 the first named applicant ultimately indicated that only she, and not her daughter or her husband, would be participating in the hearing). On 16 February 2024 the first named applicant appeared before the Tribunal to give evidence and present arguments relating to the issues arising in her and her daughter’s case (and this Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages). The Tribunal took evidence from the first named applicant and also put various concerns to her about her claims, and she responded to these at the hearing, and she also provided further responses to some of the Tribunal’s concerns by way of further submissions which she made electronically to the Tribunal on 7 March 2024.

4. On 27 June 2024 the Tribunal received a request from the first named applicant for access to documents under the Freedom of Information Act 1982, and specifically: a copy of her Tribunal file, including the audio recording of her hearing of 16 February 2024. On 27 June 2024 the Tribunal provided [the first named applicant] with a copy of her Tribunal file, including the audio recording of her hearing of 16 February 2024. No further information has been received from the applicants, and they have given the Tribunal no indication that they intend or wish to provide any further information or evidence.

5. 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.

   Criteria for protection visa

6. 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.

7. 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.

8. 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).

9. 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.

   Mandatory considerations

10. 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 (the Department), 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.

    REASONS AND FINDINGS

    Receiving country

11. The first named applicant claims to be a citizen of Malaysia. I note that Article 14 of the Federal Constitution of Malaysia provides that a person is a citizen of the Federation of Malaysia by operation of law if they were born on or after 16 September 1963 within the Federation of Malaysia to parents of whom at least one was a citizen at the time of birth;[1] and I note that the applicant has indicated that she was born in Malaysia (in the state of Perak) in [Year] to parents who were both citizens of Malaysia, and she has presented her Malaysian passport which confirms her claims about her date and place of birth, and which states that she is a national of Malaysia. I accept that the applicant is a citizen and a national of Malaysia, and I find Malaysia to be her receiving country for the purpose of this decision.

    [1] 'Federal Constitution of Malaysia', Government of Malaysia, 01 November 2010, 20191128113408; Canada IRB, ‘Malaysia: Citizenship laws, including methods by which a person may obtain citizenship; whether dual citizenship is recognized and if so, how it is acquired; process for renouncing citizenship and related documentation; grounds for revoking citizenship, 16 November 2007, MYS102621.E.

12. The first named applicant claims that her daughter, [Miss A] (the second named applicant), is also a citizen of Malaysia. The only identity document provided for [Miss A] is her NSW issued birth certificate which indicates that [Miss A] was born in Australia in [Year] and that the first named applicant is her mother. I note that at the time [Miss A] was born a child was automatically entitled to citizenship of Malaysia no matter the place of the child’s birth if she was the child of a marriage in which her father was a Malaysian citizen.[2] The applicant has provided an Australia marriage certificate which indicates that she married a [Mr B] (born in Malaysia in [Year]) two years prior to the birth of [Miss A]. I note also that [Miss A]’s surname matches [Mr B]’s given name; and I note that the first named applicant has indicated that she and [Mr B] and her daughter are all Muslim, and I note that it is the convention in Malaysia for Malay Muslim children born from a marriage to take their father’s given name as their surname.[3] All this supports the applicant’s claim that [Miss A] is born from a marriage between her mother to [Mr B], such that [Miss A] is also a citizen of Malaysia (only those children born after an October 2024 amendment to Malaysia’s constitution are able to obtain Malaysian citizenship solely by way of being born to a Malaysian citizen mother).[4]

    [2] OHCHR, ‘Malaysia: UN experts welcome proposed changes to citizenship law, urge more reforms to end discrimination against women’, 3 December 2024, ; Yusof, I.M. ‘Who wins, who loses from the changes to Malaysia’s citizenship laws?’, Benar News, 22 October 2024,

    [3] High Commission of Malaysia, Wellington, ‘What can you tell me about Malaysian names’,

    [4] OHCHR, ‘Malaysia: UN experts welcome proposed changes to citizenship law, urge more reforms to end discrimination against women’, 3 December 2024, ; Yusof, I.M. ‘Who wins, who loses from the changes to Malaysia’s citizenship laws?’, Benar News, 22 October 2024,

13. The only potential concern in this regard is that [Miss A]’s NSW issued birth certificate lists no details as to the identity of her father. I broached this with the first named applicant at the hearing and she indicated that this was because [Mr B] had not had sufficient identity documents to satisfy the authorities who facilitated the issuance of [Miss A]’s NSW issued birth certificate, and that this was owing to his having lost his Malaysian passport, and his being currently unable to obtain a new passport from Malaysia’s High Commission in Canberra ([Mr B] has himself been pursuing a review of a decision to refuse him a protection visa, and Malaysia’s High Commission in Canberra will not issue a passport to a citizen who either holds a protection visa or a bridging visa in this regard);[5] and the applicant submitted that were her husband in a position to obtain a Malaysian passport he would have [Miss A]’s NSW issued birth certificate corrected to detail himself as her father. I accept that all this is the case, and for the purpose of this assessment, I accept that [Mr B], a citizen of Malaysia, is the father of the second named applicant, [Miss A].

    [5] High Commission of Malaysia, Canberra, ‘Passport Renewal’,

14. I note also that, as the first named applicant is aware, her husband [Mr B] is currently also seeking review of the decision to refuse him a protection visa. I note that in the event of success in this regard by either [Mr B], or by either of the applicants, none of these parties would be required to return to Malaysia since even such parties as were found not to face a real chance of persecution or a real risk of significant harm would, nonetheless, meet s.36(2) by way 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. That is to say, the only situation wherein the applicants would be returning to Malaysia would be one wherein [Mr B] was also returning to Malaysia, such that in these circumstances [Mr B] would be in a position to obtain a Malaysian passport, and then amend the details of [Miss A]’s NSW birth certificate to reflect that he is her faither, such that her entitlement to Malaysian citizenship could be formalised and documented.

15. There are some further procedural elements to this. To formalise [Miss A]’s entitlement to Malaysian citizenship her birth must be registered with at Malaysia’s High Commission in Canberra and, because this will be done more than a year after her birth, both of her parents will have to appear in person before the Consular officer for the registration to proceed. But beyond this the requirements will be broadly the same as those which apply for a child whose birth is registered within the first 12 months: with the parents being required to provide evidence of their Malaysian citizenship (such as a national identity card or passport), their marriage (and that this has been registered with the Malaysian authorities), the child’s Australian issued birth record, and payment of two separate processing fees on application and registration of AUD10 and AUD35 respectively.[6] If the parents’ marriage in Australia has not yet been registered with the Malaysian authorities, then this will have to be processed before the application is lodged for the child’s citizenship registration, and will require the couple’s Malaysian birth and national identity documents, and their Australian issued marriage certificate (and if registration is taking place more than 6 months after the marriage it can incur a fee for late registration of RM100.00 (around AUD40) for the first 12 months and RM50.00 (AUD20) for every subsequent year).[7] It is not apparent that any such small fees or documentary requirements would prove an impediment to the completion of these processes in the event that the applicants, and also [Mr B], were unsuccessful in obtaining a protection visa and were required to return to Malaysia.

    [6] High Commission of Malaysia, Canberra, ‘CHILD BIRTH REGISTRATION’,

    [7] High Commission of Malaysia, Canberra, ‘CHILD BIRTH REGISTRATION’,

16. I accept that [Miss A] is a citizen and a national of Malaysia, and I find Malaysia to be her receiving country for the purpose of this decision.

    Protection claims

17. In lodging her protection visa application on 23 January 2019 the first named applicant (the applicant) submitted that she had fled Malaysia (in November 2018) because it was a very conservative country and the majority of the population was Muslim and she was born and raised in a Muslim family and they would not accept her nature as a bisexual person because this is seen as morally wrong in Islam, and so her parents and community despised her and had started to ignore her family, and had even tortured her [child] from her previous marriage, which had made her sad and miserable; and so she had left Malaysia to find freedom. The applicant submitted that she feared return to Malaysia because her relatives and family would torture or harm her and her family, both mentally and physically, as her family are strict Muslims and will not accept her bisexuality; and she might become depressed and suicidal, and she was unable to relocate because she had a [Age]-year-old [child] (born [Year]) who was staying with her parents (and the applicant indicated that she telephoned her mother in Pahang once or twice a week in this regard), and her [child] had begun primary school, and also because she (the applicant) needed to take care of her parents because she was the first daughter of her family and a single mother (at that time the applicant had not yet married [Mr B]), and all her siblings (she indicated she had a sister and a brother) were married and stayed far away from her parents.

18. On 28 February 2022 the delegate wrote to the applicant and put it to her that in her written claims she had not provided any details as to the harm she claimed to have suffered, or the dates and locations involved, and that that this raised concerns about the genuineness of her claims. The delegate invited the applicant to provide this information and other details in writing. In response to the delegate’s questions, the applicant submitted in writing that she first realised she was attracted to women after her divorce (from her first husband) at which time she was around [Age] years of age; and she attached a Malaysian document and a translation for this which presents as her divorce certificate (issued in Malaysia’s state of Selangor) which indicates that in November 2013 The applicant was divorced from a [Mr C] whom she had married in February 2010.

19. Asked how she felt about being bisexual in Malaysia, the applicant responded that it made her feel weird, scared, and afraid to face people and society. Asked to detail such relationships as she had had, the applicant listed the following. First: a relationship with a man named [Mr D] from 2014 with the applicant claiming that this ended because [Mr D]’s family forced him to marry someone else. Next: a relationship with a woman, [Ms E], who the applicant claimed to have had a secret relationship with from 2017 even while the applicant had a boyfriend, and with the applicant claiming that she and [Ms E] had remained in a relationship even though [Ms E] had remained in Malaysia while the applicant had left for Australia. And lastly: the applicant listed her relationship with [Mr B] as beginning from 2018, with the applicant claiming that [Mr B] has been her ‘guide’ here in Australia because she has been alone here.

1. Asked to provide evidence of her previous relationship, such as photographs, joint bank accounts, lease agreements and/or correspondence, the applicant submitted that she did not have any such documents.

2. Asked if she had told her family about her sexuality and, if so, what their response had been, the applicant provided a response which was significantly different from how she had framed her situation in her January 2018 protection visa application, submitting now that although her family had initially been shocked and upset, they had tried to accept her for who she was. The applicant submitted that she had also told her friends, and some had been able to accept this, but others had not and had avoided her. Asked if she had met other LGBTI persons in Malaysia and, if so, how, the applicant submitted that she had met just a few on social media (though she attached no evidence of this). Asked how these persons were treated, the applicant submitted that they had been criticized through the social media with threats of being killed, and there was a mentality of harassment. Asked if she had become involved with the LGBTI community in Australia, the applicant said she had not because her English was not good, and she was not confident to face other people. Asked about her religion, she indicated that she was still a practicing Muslim, but that her religion considered her unlawful and sinful. The applicant submitted that in Malaysia she kept her sexuality a secret within a small group of people; and she submitted that she feared that if she returned to Malaysia she would be reported by the Islamic Department (that is, the authorities responsible for enforcing Islamic law), and the Muslim community who would despise and sideline her family, and worsen the situation for her [child].

3. Asked if she had had any past adverse interactions with the authorities in Malaysia due to being bisexual, the applicant said that she had been charged with khalwat in this respect and that she had a court letter to prove this; and she attached a Malay language document and an English language translation for this. From the translation it is apparent that in February 2018 the applicant was issued a receipt by a sharia (Islamic law) court in Malaysia’s state of Terengganu for payment of RM,2,3000 (around AUD800) with respect to a sharia court fine. During the course of the subsequent interview of 16 May 2022 with the delegate, the applicant provided the delegate with a further related Malay language document (and an English language translation for this), and this presents as a report which was filed by a Sharia Enforcement Officer with a Sharia court in Malaysia’s state of Terengganu. The report states that on a date in early October 2017 at around 1:15am the officer acted on intelligence and conducted a raid on a hotel room where he found seven persons, four males and three females, and determined that these person were neither husband and wives nor chaperones, and: Accordingly, they were brought before the Court on charges of committing khalwat under section 31(a) of the Sharia Criminal Offenses (Takzir) (Terengganu) Enactment 2001. The applicant is listed as being one of the seven person who were brought before the Islamic Court in Terengganu in this respect, and so is [Ms E].

4. I note, however, that in Malaysia the crime of khalwat is generally not associated with bisexuality or with lesbian sexuality, but with suspected immoral (ie: sexual) behaviour between a man and a woman or women, or between a woman and a man or men, who are not married to each other, and who are found in a seclude location (such as a hotel room) without a chaperone.[8] In Terengganu the crime of khalwat is defined for Muslims (under Section 31(a) of its Sharia Criminal Offenses (Takzir) (Terengganu) Enactment 2001) as being when: ‘Any – (a) man who is found together with one or more women, not being his wife or [family member]; or (b) woman who is found together with one or more man, not being her husband or mahram [family member], in any secluded place or in a house or room under circumstances which may give rise to suspicion that they were engaged in immoral acts shall be guilty of an offence and shall on conviction be liable to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both’.[9] In Malaysia bisexuality is not considered a crime as such, but what can be considered a crime is sexual relations (or the intent of such) between persons of the same gender; and for Muslims (who are governed in such matters by state jurisdiction Islamic personal law) sexual relations between men is classified defined as the crime of liwat, while sexual relations between women it defined as the crime of musahaqah.[10]

   [8] Razif, N.H.M. ‘Intimacy Under Surveillance: Illicit Sexuality, Moral Policing, and the State in Contemporary Malaysia’, Brill, 28 October 2020, ; Nawratek, K. ‘De-colonizing public spaces in Malaysia: dating in Kuala Lumpur’, Impact Factor, February 2020, ;

   [9] Bin Hairudin, K.A. & S.Q. Bin Qamar Siddique Bhatti, ‘The Court of Appeal’s Decision in Muhamad Juzaili bin Mohd Khamis & Ors v State Government of Negeri Sembilan & Ors – A Real Breakthrough in the Law’, JMCL Vol. 45 Isu 2 2018, p.72, n.4,

   [10] Bin Hairudin, K.A. & S.Q. Bin Qamar Siddique Bhatti, ‘The Court of Appeal’s Decision in Muhamad Juzaili bin Mohd Khamis & Ors v State Government of Negeri Sembilan & Ors – A Real Breakthrough in the Law’, JMCL Vol. 45 Isu 2 2018, p.71, ; Queer Lapis, "Comparison of Syariah Laws that Criminalise Same-sex Relations by State", 19 February 2020, 20220718141801; HRW, ‘Appendix I: Malaysia’s Sharia (Syariah) Laws on Sexual Orientation and Gender Identity, by State’, 2014, ; Bin Mohd Khamis, M.J. Global Legal Post, ‘Convicted women to be caned in Malaysia for 'attempting lesbian sex'’, 16 August 2018, ; The Week, ‘Malaysian women caned for “attempting lesbian sex”’, 3 September 2018, ;

5. There is thus nothing in the evidence which the applicant provided to the Department (with respect to her Terengganu court documents) which expressly indicates that she was charged with anything other than having committed an immoral act by way of being a woman who was found in a secluded place in proximity to men of whom none were her husband.

6. On 16 May 2022 the applicant was interviewed by the delegate about her application by video, with the assistance of an interpreter of the Malay and English languages. During the interview, in response to the delegate’s questions about her marital status, the applicant disclosed for the first time to the Department that she had re-married while in Australia in July 2019 to [Mr B] from Malaysia who she had met in Australia in 2018, and that they had had a daughter in [Year], [Miss A]. The applicant subsequently provided the Department with a copy of her NSW certificates for her July 2019 marriage to [Mr B], and the birth in [Year] of [Miss A], and on 10 June 2022 the Department advised the applicant that [Miss A] was now taken to be a part of the protection visa application lodged on 23 January 2019.

7. At the 16 May 2022 interview the delegate asked the applicant if she had any reasons to fear return to Malaysia, and the applicant submitted that she did and this was because she was bisexual and so people looked at her with a sarcastic and bad look, and she would always feel threatened, and the Malaysian community did not accept her bisexuality and disdained her and her family members and she felt afraid to go out and be in public, and she felt their hatred and did not feel safe to be in Malaysia, because Islam prohibits being bisexual, and the community’s reactions to her would also have a negative effect on her child. Asked if her family had experienced any harm in Malaysia as a consequence, the applicant said the local community had contacted her family and had asked them to kill her because she had embarrassed her family and the religion of Islam, and they had had come to her family home in this regard, and that the problem had lessened after her departure but the problem would arise again if she returned to Malaysia.

8. Asked how the local community had come to believe she was bisexual, the applicant said that she had shared with some of her friends that she had bisexual feelings, and that unfortunately some of these people had made this known to other people in the community including her own family, and this was how the community came to know she was bisexual. Asked what she meant by bisexual, the applicant said that it meant she liked both male and female, and that she could fall in love with women in the same way she would fall in love with men. Asked when she first had feelings like this toward women, she said this began after she divorced her ex-husband and following this there was a period where she had interacted with a lot of other men and women, going clubbing and engaging in other social activities, and she had begun to have feelings toward both men and women. Asked what sexual relationships she had had with women, the applicant said that she had had just one relationship of this kind, and this was with [Ms E], and her other relationships with women were just friendships. Asked who was aware of her relationship with [Ms E], the applicant indicated that her husband was and was accepting of this, and a few close friends knew about it also. Asked if anyone else in the community in either Malaysia or Australia knew about [Ms E], the applicant said that in Australia her husband and a few friends knew about [Ms E], but in Malaysia it was only a few friends who knew.

9. Asked why [Ms E] did not travel with her to Australia, the applicant said that [Ms E] did not because of her commitments in Malaysia, and that these were her work, some debts and her family. Asked if [Ms E] was married, the applicant said that she was and had just become married recently. The delegate put it to the applicant that she (the delegate) would have expected that [Ms E] would have left Malaysia with the applicant if they had been in a relationship together in Malaysia and had feared harm there on this basis. The applicant responded that she had wanted [Ms E] to come with her, but [Ms E] had been unable to because of her responsibilities, but they maintained their relationship by telephone and video calls. Asked how they had spent 2018 together, the applicant said that she and [Ms E] went to clubs, and went on holiday together to [Countries 1 and 2], and they slept together (meaning they had sexual contact with each other). Asked about how her family felt about [Ms E], the applicant said at the beginning they did not accept this but had become accepting with the passage of time (thus the applicant now appeared to indicate that her family also knew about her relationship with [Ms E]).

10. Asked if any of her friends had objected to her relationship with [Ms E], the applicant said some had but she felt that she had had to confront the issue after she and [Ms E] had been caught having their relationship in a manner that went beyond what was allowed by religious teaching. Asked when this incident had occurred, the applicant said it was in October 2017 when her and [Ms E] and some friends had gone to visit an island in Terengganu and at about 1am in the morning some Islamic officials found them all in that room and their relationship became known, and the officials brought them to their office and issued them and infringement notice, and they were summoned to attend a court hearing in February 2018. The delegate queried whether the applicant was referring to the receipt she had provided for payment of a fine in February 2018. The applicant confirmed this was correct. The delegate pointed out that there was nothing about the receipt which indicated that she had been fined for being found in a sexual encounter with another woman. The applicant responded that this was because when she and [Ms E] and her friends were discovered (by the Sharia Enforcement Officer) they were all together and fully clothed and were just chatting. The delegate confirmed with the applicant that this meant that she (the applicant) had been found in the company of men and women, and not just with a woman. The applicant confirmed this. The delegate asked the applicant to explain what they were accused of. The applicant said they were accused of not being a couple.

11. The delegate put it to the applicant that the evidence she had provided about this matter (the October 2017 khalwat arrest, and the subsequent February 2018 fine) did not suggest that she (the applicant) had been fined as result of being perceived of being in a relationship with [Ms E]. The applicant said that this was because they were found with the group, but if they had been found alone together (just her and [Ms E]) the situation would have been different. The applicant then also submitted that she and [Ms E] had shared with friends the matter of their court matter, and because of the subsequent gossip people had come to know that they were bisexual (and thus the applicant now appeared to indicate that her relationship with [Ms E] was known about by persons beyond family and friends).

12. The delegate asked the applicant why she had not mentioned the matter of her being fined by a court when she initially lodged her protection visa application (in January 2018). The applicant said that at the time the documents had been in Malaysia. The delegate asked the applicant to explain her understanding of the offence of khalwat. The applicant said that it was when a male and female were together but were unmarried. The delegate put it to the applicant that this was her (the delegate’s) understanding also, and that this would mean her court matter concerned a situation wherein women and men were found together who were not married to each other. The applicant said this was correct. The delegate repeated her concern that the applicant had made no mention of the khalwat incident in her initial application, and that she should endeavour to provide a copy of the court document she had been referring to (at this point the applicant had not yet provided the delegate with a copy of the Sharia Enforcement Officer’s report to the Islamic Court in Terengganu). The applicant said that even though the document did not specifically mention that she had a relationship with [Ms E], it did show that all kinds of relationships were not welcome in Malaysia. The delegate asked the applicant to confirm that the only penalty in this respect had been a fine. The applicant submitted that they would have been jailed if they had not paid the fine.

13. Asked if she had any proof of her relationship with [Ms E], the applicant said she had no evidence other than some photographs, and from the audio recording of the 16 May 2022 interview it is apparent that the applicant displayed at least one photograph of herself and another woman (said to be [Ms E]) to the delegate by way of sharing what was displayed on her (the applicant’s) mobile telephone (though no actual documentary version of this was provided to the delegate). Asked if there was anything she would like to add, the applicant said there was not. The delegate advised the applicant that anything further which she (the applicant) provided would be taken into consideration if a decision had not yet been made, and that a decision would not be made any earlier than seven days after the 16 May 2022 interview. Nothing further was provided by the applicant to the delegate.

14. The delegate, in her subsequent decision of 21 June 2022, recounted the discussion she had had at the May 2022 interview with the applicant about the khalwat incident, and the delegate concluded that the reason the applicant was apprehended and fined in this regard was not because the applicant had been perceived as being in a relationship with [Ms E], but because she was part of a group of men and women who were together and unmarried. The delegate was not persuaded that [Ms E] would not have travelled to Australia with the applicant had they been in a relationship as the applicant claimed, and the delegate also considered it significant that after arriving in Australia her only relationship had been a heterosexual one with [Mr B] who the applicant had married. The delegate did not accept that the applicant was bisexual or that she had been in a sexual relationship with [Ms E], or that she had ever experienced any problems in Malaysia as she claimed on this basis, and the delegate noted that it was apparent from the applicant’s evidence during the 2024 interview that her she had an amical relationship with her parents. The delegate rejected the applicant’s claims to fear harm in Malaysia in their entirety.

15. On 22 June 2022 the applicants applied for review, and in so doing provided the Tribunal with a copy of the delegate’s decision. As has been noted above, the applicants subsequently provided no further information to the Tribunal about their matter until 2024 when the Tribunal invited the applicants to appear before the Tribunal to give evidence and present arguments in relation to their case at a hearing. On 16 February 2024 the first named applicant (the applicant) appeared before the Tribunal to give evidence and present arguments relating to the issues arising in her and her daughter’s case (and this Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages). I first asked the applicant several questions about her background. This included questions about where she had resided in Malaysia, and in response to these she indicated that from 2002 she resided in Kuala Lumpur and that following her 2013 divorce (from her first husband) her [child] (who was born [Year]) went to reside in Pahang with her parents while she continued to reside in Kuala Lumpur and to work as [an occupation] for a [workplace] until her 2018 departure for Australia. It was thus apparent that (although many of the applicant’s Malaysian documents still listed her as residing at her parent’s home in Pahang, she had actually been residing in Kuala Lumpur for some eight years prior to her departing Malaysia for Australia). I also asked the applicant about her previous international prior to arriving in Australia and she indicated that in 2016 and 2018 she had travelled to [Country 1], and that she had also travelled to [Country 2] in 2018, and she indicated that this travel was undertaken for a holiday, and when I asked her who she travelled with she had travelled with ‘a friend’, and this was [Ms E].

16. When I asked the applicant if she had any fears about returning to Malaysia with respect to herself or her daughter, the applicant indicated that she had fears for herself and her daughter and that these arose from her (the applicant’s) circumstances. She said that the first reason for this was the threats which arose from the community around her. Asked what these were, she said there was abuse and slander against her that made her feel like there was no freedom for her. Asked to explain the circumstances which led to this, the applicant said that she was caught in khalwat or close proximity and a compromising position, and when the community found out about this it created problems for her. Asked for the date of this khalwat incident the applicant said it was in October 2017. I asked whether she was referring to the matter addressed in her Terengganu court documents. The applicant said this was correct, and she submitted that the community found out about this because it was reported on by [News source 1] and which was accessible on YouTube. Asked if she could provide any evidence of this, the applicant asked if it she could play a Malay language news report for the Tribunal from her mobile telephone. I advised the applicant that she could do this, and we could attempt to have the interpreter interpret what was said into English, but this might prove difficult and if she wanted to rely on this material, she should provide the Tribunal with both the URL link to the report and an English language translation for its content.

1. The applicant then played the beginning of the report from her mobile telephone. The interpreter said she could only gather snippets of what was being said, and that this included that it was reported that the young couples were not planning to start a family, and some had claimed to be siblings as a ruse to escape action being taken against them, and there was a location where people had stayed with the intention of engaging in illicit contact. I asked the applicant if the news report ever mentioned her by name. She said it did not, but it was a report about her matter (her October 2017 arrest for Khalwat). I asked the applicant if the report ever showed her face. The applicant said it did not, but that her friend was shown, and that this was [Ms E]. I suggested to the applicant that she provide this material along with an explanation of what the news reports were about.

2. I asked the applicant to explain how it was that the community came to know that she had been arrested for khalwat. The applicant said that her neighbours knew her friend, [Ms E], and that they had been on a holiday together, and from this they realised that the applicant had been involved in the khalwat incident also. Asked what upset her neighbours about this, the applicant said it was an immoral act for Muslims. Asked to explain what this immoral act was, the applicant said that only a man and a woman who were married could have such interactions. Thus, the applicant was now claiming that the local community had been upset with her and her family because they had inferred from seeing an image of [Ms E] in news reporting about khalwat arrests in Terengganu, that the applicant had herself been guilty of immoral contact with a man or men who were not married to her. I confirmed with the applicant that she was referring to the incident referred to in the court documents she had provided indicated that she had been fined for engaging in khalwat which was unauthorised contact with persons of the opposite sex; that is, between men and women who were not husband wife. The applicant said this was correct.

3. I asked the applicant if there was anything else about this which upset her neighbours. The applicant said that the neighbours were upset with her and her parents because her parents took know notice of what she was doing, and this was humiliating to Islamic society. I asked the applicant again if there were any other reasons why the local community was upset with her. The applicant said that there were not; and she gave no indication that the local community had been upset with her as a consequence of having been told that she was bisexual and/or was in a sexual relationship with [Ms E].

4. I asked the applicant if these persons who were upset all lived nearby her parents, she said that: yes, they all lived in the same area as her family. Asked how many people were involved, she said she was not sure, but she knew there were many of them. Asked if she knew them and she could tell me any of their names, she said that she did know some of them personally but could not remember their names. Thus, the applicant was claiming that persons from Pahang state whose names she could not remember (which does not suggest a level of any significant familiarity) had been able to recognise her friend [Ms E] in news reports (even though when I later asked the applicant about [Ms E]’s residential history the applicant indicated that [Ms E] had been residing in Kuala Lumpur and was originally from the state of Negeri Sembilan). Asked when it was that she or her family first had problems of this kind from these people, the applicant said it was after the news was publicised and she had gone back to her village (in Pahang state) to tell her parents about this (as noted, the applicant indicated at the hearing that from 2002 she was residing in Kuala Lumpur, and that after her 2013 divorce she lived in Kuala Lumpur alone and her parents looked after her [child] while she worked in Kuala Lumpur), and when these local people learned she was in the village they had started coming to the house and had targeted her and her family.

5. Asked what had happened at her parent’s house, the applicant said that the people who came to the house said she was a useless person who had embarrassed and brought shame to her family. Asked if these persons said anything else, the applicant said the people had said that she had humiliated the Islamic community and she had sinned against the Islamic community. Asked what this sin was the community thought she had committed, the applicant said it was khalwat. I asked the applicant to confirm again that she was saying that the community was angry with her for engaging in unauthorised contact with members of the opposite sex. The applicant said this was correct. She said there were incidents over 2017 to 2018 because after she returned to Kuala Lumpur the incidents had continued to affect her parents in Pahang throughout 2018, and that her neighbours had started to ostracise her family there. Asked what this meant, the applicant said the neighbours had ignored and snubbed her family and told everyone else about what had happened, and when the story spread even more people came and hurled abuse about her. Asked when this occurred, she said that this happened in her absence after she had gone back to Kuala Lumpur to work.

6. Asked for an estimate of how many times people came to her parent’s house in the above respect, the applicant said that her mother told her this happened quite a lot. Asked if anything else ever happened, the applicant said that she also found that she could not work because she felt very stressed by all of this. I asked the applicant whether the people who came to her parent’s house ever did anything more than making verbal statements about her having done the wrong thing. She said they did not. Asked if her parents ever reported these matters to the police, the applicant said they had not because they were old people who stayed at home, and they were a little bit embarrassed and upset with her also, and her parents said that she was the cause of all of this. I asked whether, nevertheless, her parents ever asked the police to make this harassment stop. The applicant said that police would not help with matters like this which arose from khalwat. Asked why she had left Malaysia for Australia, the applicant said that she did so for selfish reasons because she had brought shame to her family, and she made the sacrifice to come here so that her family would not be targeted here any longer. I asked whether the harassment of her family ended after she came to Australia. She said it lessened over time. Asked if her parents had had any problems from the local community recently, the applicant said they had not.

7. Asked if she or her daughter would have any problems if she now returned to either Kuala Lumpur or to the home of her husband, [Mr B], the applicant said that the problems would happen again because people liked to revisit the mistakes you had made in the past. I asked the applicant where she would return to in Malaysia if she had to return. She said she might live with her parents. I asked her why she would do this given that she had not resided there when she was last in Malaysia (as noted, the applicant indicated at her hearing that from 2002 until her 2018 departure from Malaysia she was residing in Kuala Lumpur). The applicant said that if she returned to Malaysia she would be returning without a house or a job and so would have to depend on her family. Asked if she could reside at her husband’s home, the applicant submitted that the problems might still happen again because the neighbours would know she had returned to Malaysia. Asked for a firm answer on whether she could reside at her husband’s home, the applicant said this was possible.

8. Asked to explain exactly what she thought would happen if she did return to reside with her parents, she said she thought the neighbours would come around and ask why she had come back, and talk about what she had done in the past, and would allege that maybe she would do the thing same thing again, and they would bring up the mistakes she had made in the past. I asked the applicant whether the attitude of her neighbours might change toward her now that so much time had passed, and she was married and wore the hijab (the applicant presented at the hearing thus attired). The applicant responded that people would say she was just pretending to be religious, and they might tell her husband and her child that she was a sinner. Asked how she thought this would affect her child, the applicant said she did not want her child to know or be affected by these things and she wanted to keep her child safe, and all this might cause her (the applicant stress), and she might do something out of her control. I pointed out that it had been six years since her departure from Malaysia, and her [child] was residing with her parents, and even so she had indicated that people were not coming around to bother her parents anymore. The applicant insisted the neighbours would again bring up the stories from the past, and she had come to Australia because she did not want the community to harass her parents and she wanted them to live in peace.

9. I put it to the applicant that, given the amount of time she had spent residing in Kuala Lumpur, I might conclude that it was Kuala Lumpur she would return to and, if this was the case, it might be difficult for me to accept that she or her daughter, or her parents, would have any problems as a result of her parents neighbours learning she had returned to Malaysia. The applicant responded that it might be safe for a year or two but in the long run you could not know what would happen.

10. I asked the applicant if there were any other reasons why she thought that she or her daughter might come to any harm if she were to return to Malaysia. The applicant submitted that over time the community might not be able to control their anger and that things would go beyond words, and they might hurt her and her child physically. Thus, after several invitations from the Tribunal at the hearing to explain any reasons for why she feared harm in Malaysia for herself and/or her daughter, the applicant’s claims were limited to how the local community in the vicinity of her parents’ village would subject her and her children and parents and other family members to abuse and mental harm, and possibly the threat of physical harm, because they were aware that the applicant had been arrested for khalwat in 2017, owing to how they had recognised the image of her friend [Ms E] in news reporting about this. This was very different to what the applicant had claimed previously, and up to this point in the hearing she gave no indication that she had any fears with respect to being bisexual, or that she had ever been in a relationship with [Ms E] that went beyond friendship, or that the local community in Pahang had become angry with her after her friends shared what she had told them about having sexual feelings for women.

11. Given this, I put it to the applicant that I had some concerns about how the evidence she had thus far given at the hearing had differed from the evidence she had given to the Department. I explained that I understood that sometimes a person might initially submit protection claims in a manner that exaggerated these because they thought this might make for an effective application, and that later they might seek to be more honest about what had occurred. However, I also explained that there might be times when claims were so different that a decision make might find it difficult to accept either version, and so I wanted to put these differences to her and give her the opportunity to explain them.

12. I then put it to the applicant that in her January 2018 protection visa application she had submitted that she had left Malaysia because her family could not accept her nature as a bisexual person, but then to the delegate she had claimed only to fear the local community, and to the delegate she had claimed that the reason the community was upset with her was that she had told friends about her bisexual feelings and then this information had gotten out into the wider community and this was the reason why people were coming to her family home and making threats against her. I also put it to the applicant that to the delegate she had claimed that she had been involved in a sexual relationship with [Ms E]. I put it to the applicant that, in contrast to this, she had thus far claimed at her 2024 hearing that the reason her parent’s local community was upset with her was because they had learned that she (the applicant) had been involved in a khalwat incident, and she (the applicant) had left Malaysia because she wanted the community to stop harassing her parents on this basis. I put it to the applicant that what she was claiming now at the 2024 hearing was different to what she had claimed previously, and this raised the concern that neither account was true or that, at the least, there had been some exaggeration, and that this might make it difficult to accept that such events had occurred.  

13. The applicant’s response to this was that during the 2024 hearing she had only been asked why she feared returning to Malaysia, and so she had not said anything about [Ms E], and that she was waiting to be asked questions about her relationship with [Ms E]. The applicant did not volunteer anything further. I now asked the applicant if she had had a sexual relationship with [Ms E]. The applicant said she had. The applicant said they were very close and that was why she had said at the beginning of the hearing that she had been to [Countries 1 and 2] (as noted above, in the early stages of the hearing I had asked the applicant who she travelled with for her holidays to [Country 1] in 2016 and 2018 and [Country 2] in 2018, and the applicant had said that she had travelled with [Ms E], but I also note that in stating this the applicant had referred to [Ms E] as ‘a friend’).

14. I asked the applicant to estimate when her relationship with [Ms E] began, she estimated that it began in 2016. Asked when it ended, the applicant said it never had, and even though she was married and had a child and a husband, and even though [Ms E] was now married also, their relationship was the same as before. I then asked when [Ms E] was married. The applicant initially said she could not remember, but then submitted it was maybe 2021 or 2022. Asked for the name of the person [Ms E] had married, the applicant said she did not know. Asked where [Ms E] was residing now, the applicant said she was in Kuala Lumpur. Asked if she had any evidence that she remained in an ongoing relationship with [Ms E], the applicant said her evidence was just normal messages such as calls. I suggested to the applicant that if she felt she had any evidence which would establish that her relationship with [Ms E] went beyond friendship she should provide this to the Tribunal, and that what would be most significant in this regard would be evidence which established that her relationship with [Ms E] had continued over a long period of time. The applicant asked what such evidence might be, I explained to the applicant that this would be for her to decide depending on what this purported relationship entailed, but it might include letters or exchanges by email or social media over a period of time.

15. I then asked the applicant to explain why, if it was the case that she remained committed to [Ms E], that she had married her husband. The applicant submitted that when she first came to Australia she was on her own and did not know how to speak English and she had met [Mr B] and he had helped her in a lot of ways, and she had told her husband who she truly was, and he had accepted her and so they decided to get married. I put it to the applicant that it was not apparent from this that there had been a need for her to marry [Mr B], as in Australia she and [Mr B] could have had a sexual relationship without having to do this. The applicant said that if she did not get married, and if sex with [Mr B] had resulted in a child out of wedlock, then this would have created a big problem for her if she had returned to Malaysia. I asked the applicant why [Ms E] had not come to Australia if it was the case that they were in an ongoing relationship. The applicant said that [Ms E] had had family and work commitments and so had been unable to follow her to Australia. I put to the applicant that my concern was that [Ms E] had not even visited her in Australia, even though they had in the past travelled to [Country 1 and 2] together. The applicant said it was not easy to get a visa for Australia, and also [Ms E] had financial problems. Asked to explain what financial problems [Ms E] had, the applicant said that to come to Australia you needed to have a lot of money. I asked the applicant if she knew whether [Ms E] had ever applied for a visa for Australia. The applicant said she did not think so. I expressed surprise that the applicant would be unsure of this, and the applicant responded that [Ms E] had not applied for a visa or Australia because [Ms E] knew this would be difficult.

16. I accept that a compelling factor in the applicant marrying [Mr B] may have been the concern that they did not wish to have a child out of wedlock. I also accept that travelling to Australia from Malaysia would be more expensive and difficult than travelling to neighbouring [Country 1 or 2] but, even so, given how the applicant responded to my questions about whether [Ms E] had ever applied for a visa to visit Australia (there was no indication in this that the pair had ever considered how they might go about overcoming any obstacles to do this successfully), I find it difficult to believe that the applicant has been in an ongoing relationship with [Ms E] that goes beyond friendship. Moreover, at the hearing the applicant appeared to be without a clear recollection of who [Ms E] had married, or who this was.

17. I put it to the applicant that I had concerns about what she was telling me, because on the one hand she claimed to be in an ongoing relationship with this person, but she did not have a clear idea of when this person was married, or to whom, and even though this person had previously been on three overseas trips with her as a friend, she had not once attempted to apply to for a visa to visit the applicant here in Australia. The applicant submitted that she had told [Ms E] that she was going to run away from Malaysia and [Ms E] had told her that she could not come with the applicant because she had to look after her family and she had commitments in Malaysia, and she did not know her husband’s name because [Ms E] only gave her his title and nickname. I put it to the applicant that earlier when I had asked her about where it was that she would return to in Malaysia, she did not even raise the whereabouts of [Ms E] (who the applicant had now indicated was residing in Kuala Lumpur) as a concern such that it did not appear that the whereabouts of [Ms E] was on her (the applicant’s) mind at all in this regard. The applicant responded if she decided to go back to reside with her parents in Pahang, she would have no problems meeting up with [Ms E]. I accept that the applicant could travel to meet with [Ms E] in such circumstances but, even so, I would nonetheless have expected that she would have said something about [Ms E] and her location when considering and discussing where she might reside if she returned if in fact the pair were in a relationship that went beyond friendship. I put this to the applicant, and in response, she submitted that the matter had not been on her mind at the time. As noted already, I find it difficult to believe that this would have been the case if the applicant and [Ms E] were in an ongoing relationship that is more than a friendship.

1. Asked if having a relationship with [Ms E] would cause any problems for her or her daughter if they returned to Malaysia, the applicant said she thought it would be because her daughter was still young and might not be able to accept this, but it was too difficult to know because it was too far in the future. Asked if a relationship with [Ms E] would cause any other problems, the applicant said that she did not know. Thus, at the 2024 hearing, the applicant ultimately did seek to maintain her claim that she had been, and continued to be, in a sexual relationship with [Ms E], but she did so unconvincingly and had little to say in terms of how this might result in any problems for her or her daughter.  

2. I explained to the applicant that we would take a brief adjournment and upon resumption of the hearing she could make any further submissions she might wish. Upon resumption of the hearing, I first asked the applicant whether [Ms E] had ever experienced any problems in Malaysia. The applicant said [Ms E] had had problems with people bothering her parents in her home village in the state of Negeri Sembilan, but not as badly as had been the case for herself (the applicant) with her parent’s neighbours in Pahang. Asked if [Ms E] had problems in Kuala Lumpur the applicant said she had not. I then asked the applicant if she had anything further that she wanted to say before the hearing concluded, the applicant said her child’s future would be more secure in Australia than in Malaysia. Asked what she meant by this, the applicant said that her child should not be a victim of them targeting us (that is of the neighbours targeting them). The applicant then asked if she could have three weeks to provide further evidence. I agreed to this, and that the Tribunal would undertake not to make a decision any earlier than 8 March 2024, and that if she wished for the Tribunal to give an undertaking not to make a decision until later, she could send the Tribunal an email requesting this.

3. The applicant subsequently provided the Tribunal with photographs which apparently show her with [Ms E] (and are thus from the years prior to the applicant’s 2018 arrival in Australia), including several showing them being affectionate toward each other by way of a close hug, or a kiss on the cheek, or presenting the other with a flower; and they are also shown in the company of other persons, apparently their other friends from the time when the applicant was residing in Malaysia. The photographs establish that prior to the applicant’s arrival in Australia she and [Ms E] had an affectionate relationship, but the photographs are not in themselves compelling evidence that the two were in a relationship that went beyond friendship.

4. The applicant subsequently also provided the Tribunal with: a screenshot of a YouTube clip of a [News source 1] newsclip with a Malay title (without a translation) dated 9 October 2017 and a URL link for this (apparently the news clip she played at the 2024 hearing); and: an English language [News source 2] article which appeared on 8 October 2017, and a URL link for this (apparently the article she mentioned at the 2024 hearing). The latter details how an operation was conducted in Terengganu with 13 men and 10 women being investigated for close proximity under Section 31 of the Syariah Crime Offences (Takzir)(Terengganu) Enactment 2001, and that: One female suspect was detained in a hotel room with three men while some other couples claimed that they were siblings or engaged to avoid being arrested. The content would thus appear to be similar to that which the interpreter gave an account of with respect to the Malay [News source 1] newsclip which the applicant played from her mobile telephone at the 2024 hearing. I accept that both the print article and the newsclip are about khalwat arrests which occurred in early October 2017, in Terengganu, and which resulted in the arrest of some 21 persons, including the applicant and [Ms E] and their five friends. However, the applicant’s claim that [Ms E] was recognised from this reporting as a consequence of her being pictured in this is difficult to credit. For, while the print article is accompanied by a photograph in which two men and two women are visible, the faces of both women and one of the men have been digitally obscured by pixelation, and the other man is facing away from the camera, and the other features of the two women are also largely obscured by either pixelation or by the man in the foreground. I have also viewed the [News source 1] newsclip and in this none of the faces of the women are visible in a manner that would plausibly enable their being recognised, as all have their faces turned away from the camera and/or are wearing the hijab such that their faces cannot be seen from side on.

5. Moreover, the problem with all of this, as has been discussed above, is how the applicant’s evidence has changed over time such as to raise doubts about her claim that she experienced any problems from her parent’s neighbours with regard to her khalwat arrest (that is, any problems beyond her being arrested in October 2017, and her appearing before an Islamic court and then paying a fine in February 2018). For, in her 23 January 2019 protection application it was the applicant’s claim that she feared harm in Malaysia owing to her purported bisexuality, and she claimed to fear and to have been harmed by her own family as much as the community; and she gave no indication whatsoever that she had any concerns about how her local community had reacted to her being convicted of a khalwat offense in which she had been found in proximity to men to whom she was not married. As has ben noted above, the applicant submitted to the delegate that she did not make any reference to the khalwat incident in her January 2018 protection visa application because at the time her evidence of this (her Terengganu court documents) were in Malaysia. I have not found this persuasive given that the applicant made various claims in her January 2018 written claims which wee unsupported by any documentary evidence (including that she was bisexual, and that her relatives and community had started to torture her [child]).  

6. The applicant subsequently did refer to her khalwat arrest in her written response to the delegate’s request of February 2022 for more information about her claims. But what the applicant submitted in this regard was that her arrest for khalwat was proof of her having had a negative interaction with the authorities in Malaysia due to her bisexuality. At her subsequent 2022 interview with the delegate the applicant similarly sought to associate her khalwat arrest with her claim to have experienced mistreatment as a consequence of her bisexuality by submitting (as is noted in the delegate’s decision which the applicant provided to the Tribunal) that she had made friends aware of her bisexuality because of what had occurred with respect to her having been arrested in October 2017 (the implication being that her arrest for khalwat would somehow make her bisexuality known more broadly). During the course of the 2022 interview the applicant ultimately conceded that her arrest for khalwat, and the circumstances in which this occurred, had nothing to do with her being perceived to be bisexual, or her being perceived to be in a same sex relationship with [Ms E], but this was only after the delegate had probed the applicant’s initial claims about the actual circumstances of the arrest and the meaning of khalwat, such that the applicant’s initial claim (that she had been arrested for bisexuality and being in a sexual relationship with [Ms E]) was rendered untenable.

7. Then, at her 2024 hearing, the applicant submitted that the reason she and her [child] and parents had suffered abuse from her parent’s neighbouring community was because these neighbours considered she had been party to a khalwat offence, and specifically the crime of being with men to whom she was not married, and that they had concluded this after seeing a news media image of her friend [Ms E] among the persons who had been arrested in this regard; whereas at her 2022 interview with the delegate (as is noted in the delegate’s decision which the applicant provided to the Tribunal) the applicant sought to claim to claim that the local community were harassing her and her family because of her bisexuality, with her community having become aware of her sexuality because she shared with some of her friends her sexual feelings, and those friends shared that information with others in the community. As noted above, at the 2024 hearing the applicant initially made no mention of having experienced any problems, or of having any concerns, about bisexuality, nor did she say anything about having ever been in a sexual relationship with [Ms E] until this previous claim was put to the applicant by the Tribunal.

8. As noted, when I put it to the applicant that I had concerns about the matters discussed above, her response was that she was waiting for the Tribunal to ask her about [Ms E]. I have not found this persuasive. For, if the applicant had concerns about being or having been in a sexual relationship with [Ms E], or about being bisexual more broadly, I consider that she would have said something about this at one on the several invitations which the Tribunal made to her during the hearing prior to this, for her to submit any reasons she had for fearing harm if she return to Malaysia, and/or why the local community was purportedly angry with her; and again, as noted already, when the applicant was asked about who she travelled to [Countries 1 and 2] with, the applicant had referred to [Ms E] only as a friend, and when asked to discuss where she would return to in Malaysia, and why, she gave no indication that the whereabouts of [Ms E] were a concern for her (and the applicant’s subsequent response that it would not be problem for her to meet up with [Ms E] was not persuasive). The evidence which the applicant has subsequently provided (the photographs of her and [Ms E] and other friends; and the news reports about the khalwat arrests in Terengganu in October 2017) have not overcome my doubts in this regard.

9. I do not accept that the applicant and [Ms E] have ever been, or have they have ever been perceived as being, anything more than friends. I do not accept that the applicant has ever been bisexual or perceived as such. I am therefore not satisfied that there is for the foreseeable future a real chance that any matter of this kind would (no matter whether the applicant and her daughter returned to Pahang or to Kuala Lumpur or to somewhere else in Malaysia) result in the applicant or her daughter facing harm of any kind from any actor in Malaysia.

10. I accept that the applicant and [Ms E] were arrested in Terengganu in October 2017 along with five friends for khalwat (this being proximity between unmarried men and women), and that the applicant had to attend court and pay a fine in this respect, but I do not accept that she ever had any further problems as a result of this or that the matter is known about beyond the Terengganu officials involved, and the applicant and [Ms E] and the other friends who were also involved, and perhaps their immediate family members. I am not satisfied that the matter is known about in the wider community, let alone that such knowledge has ever caused any problems of any kind for the applicant or her family members, or that anyone (including such family members as may know about this matter) harbour any ill feeling toward the applicant on such a basis. I am therefore not satisfied that there is for the foreseeable future a real chance that the matter of the October 2017 khalwat offence would (no matter whether the applicant and her daughter returned to Pahang or to Kuala Lumpur or somewhere else in Malaysia) result in the applicant or her daughter facing harm of any kind from any actor in Malaysia; and given that the applicant is now in a married relationship with [Mr B], and given that [Miss A] is a very young child, I am not satisfied that there is for the foreseeable future a real chance that that either applicant would be affected by a suspected khalwat offence (no matter whether the applicant and her daughter returned to Pahang or to Kuala Lumpur or somewhere else in Malaysia).

11. I note that beyond such matters the applicant has given no indication that she has any fear of harm for herself or her daughter from her family or relatives, or from neighbours in Pahang, or from the broader Malaysian community, or from Malaysia’s authorities and/or conservative Muslim society.

12. I take it into consideration that it is reported of Malaysia that violence against women and girls is a significant, albeit underreported, problem in Malaysia. But it is also the case that reporting about this problem indicates that the overwhelming basis of this problem is intimate partner violence and/or domestic violence;[11] and the applicant has given no indication that either she or her daughter are at risk of violence of this kind, or of any other kind of harm from family members or relatives whether mental or physical other than on the basis of claims (the applicant’s claimed bisexuality, and the khalwat incident) which I have rejected as having ever been a cause for ill feeling. I take it into consideration that despite legal protections, it is reported that women in Malaysia sometimes receive less pay than men for equal work, and it is also reported that (although women participate widely across various aspects of Malaysian society) some conservative cultural and religious practices continue to limit their choices. Even so, the situation in Malaysia has been improving with respect to such matters over recent years and it is not apparent from the available reporting that that any disadvantage which the applicants might experience in this regard would result in their experiencing any harm, let alone serious harm; and I note also with respect to the applicant’s daughter that Malaysia has a freely provided public school system, and all eligible children in Malaysia complete primary school, without any real difference between boys and girls, and more women than men now complete tertiary qualifications.[12]

    [11] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 3.115-3.125; Arrow, ‘Gender-Based Violence In Malaysia’, December 2022, ;

    [12] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 2.15, 3.111; Lim, B.F.Y. ‘Women Left Behind? Closing the Gender Gap in Malaysia’, Japan Labor Issues, vol.3, no.17, August-September 2019, ; Awani International, ‘Women constitute 52% of tertiary education graduates yet face gender equality challenges in the workplace, an SDG 2030 goal’, 13 September 2024, ; Muzafa, P.M.M. & H.A. Hamid, ‘Gender Gap in the World of Work: Status and Progress’, KR Institute, 4 October 2024,

13. Given the evidence and findings outlined above (and no matter whether the applicant and her daughter returned to Pahang or to Kuala Lumpur or somewhere else in Malaysia) I am not satisfied that the applicants would for the foreseeable future face a real chance of harm of any kind in Malaysia. I am therefore not satisfied that the applicants have a well-founded fear of persecution with respect to Malaysia.

14. For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a).

15. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). However, as I am not satisfied that either of the applicants faces a real chance of experiencing harm of any kind in Malaysia, I am also not satisfied that either of the applicants would face a real risk of suffering harm of any kind in Malaysia. I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to their receiving country, there is a real risk that either applicant will suffer significant harm.

16. For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

17. There is no suggestion at this time that either 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, neither of the applicants satisfy the criterion in s 36(2).

    DECISION

18. The Tribunal affirms the decision under review.

    Date of hearing:                   16 February 2024

    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.

    …