2209214 (Refugee) - [2025] ARTA 1909

2209214 (REFUGEE) [2025] ARTA 1909 (31 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2209214
Tribunal:General Member L Luo
Date:31 August 2025

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

Statement made on 31 August 2025 at 4:07pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual man and supporter of rights – rejected by family, and ignored, insulted or bullied by friends and colleagues and on social media – no relationships or organisational membership, but friends and one-night stands – convincing claims and evidence – country information – conservative nation generally intolerant of identities and behaviours – national laws and syariah laws for Muslims – official, employment and social discrimination, and familial and/or societal violence – no effective protection measures and modification of behaviour not required – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (3)(c)(vi), 36(2)(a), 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

This is an application for review[1] of a decision made by a delegate of the Minister for Home Affairs on 3 June 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] 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 28 April 2020. The delegate refused to grant the visa on the basis that he did not provide enough information to satisfy the delegate that he is a gay man.
The applicant appeared before the Tribunal on 4 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
The applicant is a [Age] year old Muslim Malay man who was born in Kedah, Malaysia. His parents live in Malaysia, and he is unsure where his [siblings] live because he has not been in contact with his family since leaving Malaysia. The applicant lived in [District] until he came to Australia in February 2020.
Evidence before the Department
In his protection visa application, the applicant claimed to be LGBT and an LGBT supporter. He said he was insulted by people on [Social media] and ignored by some of his friends. When his family found out, his mother ignored him, his father and brother slapped him and made him leave home. Some of his friends at work also insulted and ignored him. He said he felt uncomfortable and depressed living in Malaysia because of the negative societal attitude towards LGBT people.
The department invited the applicant to provide further information and evidence to substantiate his claims. The applicant did not respond to this request. The applicant was also not interviewed by the department.
The delegate refused to grant the applicant a protection visa because they found that the applicant did not provide enough information or evidence to satisfy the delegate that he was an LGBT person.
Evidence before the Tribunal
The applicant did not provide any pre-hearing submissions or evidence.
At the hearing, the applicant said he first realised his attraction to men when he was in high school. However, he hid his sexuality until he was 19 or 20. He said he began to fool around with a friend around this time. One day, in 2016, he brought his friend home and they were in his room when his brother opened the door and discovered them. His brother was very angry and told his father. His father and brother then came and slapped and hit him, and chased him out of the house. He said he tried to explain his feelings but his family wouldn’t listen because they were very religious. After being chased out of the house, he stayed at his workplace, a [company], for a few days while he tried to find a place to stay with friends.
After this, some of his friends found out about his sexuality and began to say bad things about him or look at him in disgust. Some work colleagues also found out and started bullying or insulting him. As a result, he became very introverted and depressed and focused only on work. A few years later, he said he started looking up things online and realised it was not good to live the way he was. He said he wanted people to accept him, but everywhere he went people would look at him in disgust when they found out about his sexuality. He felt too embarrassed to go out and meet people because he was constantly worried about the negative attitudes in Malaysian society.
The applicant said his family unsuccessfully tried to find him after he left. He said his brother is bigger than him and will hurt him if he finds him. He is not sure if they know he came to Australia because he has not had any contact with them.
After coming to Australia, the applicant says he feels happier and more accepted. He wants to be in a relationship but has not met anyone suitable, however he has had some one-night stands. Although he hasn’t been involved with any LGBT organisations, he has many friends who are LGBT and continues to make new friends who are similar to him. He does not want to go back to Malaysia because he fears he will become introverted and depressed again, and be forced to hide his sexuality. He said Malaysia is an Islamic country and does not accept LGBT people, and it will not matter where he goes because he will be subject to negative attitudes everywhere. He said the police will not protect him because they do not protect LGBT people. He said that in Australia, even practising Muslims are more open-minded and can accept being religious and being gay. He says that although he is religious, he can separate his own feelings and sexuality from religious teachings about other things.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a refugee or owed complementary protection. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
I have viewed a copy of the applicant’s passport biodata page and accept that he is a Malaysian citizen, with no citizenship or right to enter any other country. I find that Malaysia is the receiving country for the purposes of this review. I also accept the applicant is Muslim and an ethnically Malay man.
I accept the applicant is gay because he gave a convincing account of his experiences. I accept he was rejected by his family because they are religious and cannot accept homosexuality. I accept he was insulted, bullied and ignored by friends and colleagues. I accept that, as a result of the negativity he experienced, he became introverted and stopped trying to socialise or do anything other than work, which made him feel depressed. I accept he has felt accepted for his sexuality in Australia and now has many friends. I accept he continues to be religious but separates his sexuality from religious teachings.
I have considered the DFAT country report which states that, as a conservative Islamic nation, Malaysia is generally intolerant of LGBTQ+ identities and behaviours. Adult
[2] DFAT Country Information Report Malaysia, 24 June 2024, at pp 32-35.
same-sex acts are illegal in Malaysia, regardless of age and consent. While government stances on LGBTQ+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQ+ identity constitutes both sharia and penal code offences. Authorities at federal and state level have promoted “rehabilitation” or “re-education” programs aimed at changing sexual orientation or gender identity, also known as conversion therapy, with these programs primarily aimed at Muslims. Gay men sometimes experience employment discrimination. DFAT assesses that LGBTQ+ 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. LGBTQ+ people face a moderate risk of familial and/or societal violence. LGBTQ+ 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.[2]
Does the applicant satisfy the refugee criterion for protection?
I find that the applicant has a well-founded fear of persecution under s 5J(1) because he fears being persecuted for reason of his membership of a social group as a gay Malay Muslim man. I find that his fear is based on his own experiences, current social and official attitudes towards LGBTQ+ people, and laws criminalising and penalising LGBTQ+ expressions. I find his identity as a gay Malay Muslim man is the essential and significant reason for the persecution.
I find that the persecution involves serious harm and systematic and discriminatory conduct, as the persecution will take the form of both official and societal discrimination and may include prosecution under sharia law and the penal code, being sent to conversion therapy, as well as physical harm.
Based on the applicant’s previous experiences and current country information, I find that there is a real chance that the applicant will be persecuted for being a gay Malay Muslim man if he were returned to Malaysia in the reasonably foreseeable future, and this real chance applies to all areas of Malaysia because the agents of persecution include the Malaysian authorities.
I find that there are no effective protection measures available to the applicant as the Malaysian government is one of the agents of persecution.
I find that the applicant cannot be required to modify his behaviour to avoid persecution under s 5J(3)(c)(vi) as such modification would require him to alter or conceal his sexual orientation.
Accordingly, I find that the applicant is a refugee under s 5H(1)(a) as he is outside Malaysia and, owing to a well-founded fear of persecution, he is unwilling or unable to avail himself of Malaysia’s protection.
CONCLUSION
The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). The Tribunal finds that s 36(3) does not apply to the applicant because the applicant does not have a right to enter and reside in any other country.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing:                   4 July 2025
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.
…