2215201 (Refugee)
[2025] ARTA 1316
•28 February 2025
2215201 (REFUGEE) [2025] ARTA 1316 (28 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2215201
Tribunal:General Member F Russo
Date:28 February 2025
Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 28 February 2025 at 5:10pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – lesbian – bisexual woman – fear of arrest – physical harm – access to health care – internal relocation – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 October 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of Malaysia, applied for the visa on 14 March 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 26 November and 19 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
The applicant is [an age]-year-old Malaysian national. She arrived in Australia [in] December 2018, holding an Electronic Travel Authority. She claims fear of returning to Malaysia because of persecution on the basis of her sexuality as a lesbian and bisexual woman and on the basis of a number of medical conditions which require follow-up treatment.
Evidence before the Department
Claims made in Protection visa application
In her Protection visa application, the applicant provided very limited details of her claims. She stated that she left Malaysia because of ‘homosexual love’. She stated that she experienced harm in Malaysia, but the only information provided is, ‘Discriminated and injured by others.’ She claims that she sought help from the police but states that ‘They ignore me and do nothing.’ She states that she did not move to other parts of Malaysia to seek safety as ‘… the result is the same, because Malaysia is an Islamic country.’ The applicant claims that if she returns to Malaysia, she will be discriminated and injured or beaten by others and return to a life where she was bullied.
Further claims provided in writing to the Department
The Department file contains a copy of a s 56 invitation to the applicant to provide more detail about her claims. In response, the applicant provided an undated statement which was saved to the Department file on 7 March 2022. In it the applicant provides the following additional claims and information:
a.When she was at school, she was often teased. Ridiculed and bullied by boys, which made her hate boys, and she was an introverted person;
b.At school she met at girl who had just moved to the city. The girl would comfort her when she saw her being bullied. They became inseparable and the applicant developed feelings for her beyond friendship;
c.The applicant confessed her love to the girl, and they became lovers and then entered a de facto relationship;
d.They chose to study at the same college and studied the same classes;
e.The girl’s family found out about the relationship and were opposed to the two of them being together;
f.When friends found out they were lovers, they laughed and ridiculed them and discriminated against them. Whenever they went out in public places, people looked at them in a strange way when they saw them being intimate;
g.As a result of the strange looks they received and the sarcasm they experienced, they seldom went out and avoided appearing in public places;
h.The girl’s parents moved away from the city and the girl moved away with them. After this, the applicant and the girl could only talk by telephone. The applicant became very introverted and rarely went out or communicated with people;
i.The applicant received a phone call from the girl, telling her that she had met a boyfriend and wanted to end the relationship with the applicant;
j.The applicant became very negative and felt that life was meaningless. She could not work, she hid in her room and would not listen to advice from her family and she began to self-mutilate; and
k.Her brother was studying in Australia and asked her to come to Australia so he could take care of her. She came to Australia so she could get a ‘homosexual love visa.’
Departmental interview and delegate’s decision
The applicant was interviewed by the Department by video on 16 August 2022 in relation to her claims for protection. The delegate’s reasons for decision include details of the following testimony from the applicant:
a.The applicant stated that she left Malaysia because she is more attracted to females than to males, which she said is a problem in Malaysia;
b.She first realised she was attracted to females at age 22, as she was being bullied by boys at the time. She had her first lesbian experience at the age of 23;
c.Malaysians will look down at her and bully her if they discover she identifies as a lesbian;
d.When asked to confirm whether she is only attracted to women, she affirmed that she is bisexual;
e.She realised she was bisexual when she arrived in Australia. When the delegate questioned the applicant about the contents of her statement, in particular that she departed Malaysia because of her same-sex relationship, the applicant stated that she was attracted to a woman in Malaysia, and that she felt a sense of security with her, but her friend’s family were against the relationship and forced their separation;
f.If she returns to Malaysia, she will have to reside with her father in a small town. She would have to deal with people who pose a threat to her;
g.The delegate’s reasons indicate the applicant made reference to being physically harmed by people who thought she was ‘weird’. She stated that she does not have friends and was pushed and punched in the face at nighttime. When asked who she fears harm from, she stated that ‘hooligans’ will tease her;
h.People knew she was a bisexual in Malaysia because she resided with her partner, [Partner A]. She stated that they were always together;
i.She did not interact with other LGBTQIA+ people in Malaysia and she had no idea of any support services as she was discreet about her sexual orientation;
j.She did not interact with other LGBTQIA+ people on social media platforms in Malaysia as she stated she is an introvert;
k.She did not participate in any rallies or demonstrations advocating for LGBTQIA+ rights in Malaysia;
l.When asked if she was ever assaulted as a result of her sexual orientation or same-sex relationship, she said she had reported bullying to the authorities, but they set her case aside and failed to act on her complaint;
m.She feels comfortable in Australia because no-one looks at her in a weird manner;
n.When asked if she has participated in the LGBTQIA+ community in Australia, she stated she does not know where she can contact the community. She does not have access to a mobile telephone. She had not accessed any Australian gay websites, nor visited any gay venues; and
o.When asked whether she has had a partner in Australia, she stated that she is single and not had a relationship in Australia.
The delegate also questioned the applicant about her family relationships. At the interview, the applicant stated that while she has a relationship with her family, she seldom speaks to them, she last contacted them several months prior to the interview and she is yet to come out to her family in Malaysia. The delegate put to the applicant that Departmental records indicate that she had sent funds in excess of $53,232.77 to two people in Malaysia named [Person A] and [Person B]. The delegate’s reasons indicate the applicant explained that she did not know who these people are. The delegate put to the applicant that [Person A] was included as her contact on her incoming passenger entry card to Australia, and that she has been sending funds to [Person A]. The applicant explained that her father has speech and hearing impediments, so she sends funds to her father’s brother’s wife to take care of him. She explained that she was unsure who the delegate was referring to because the name appeared incorrect.
The delegate’s reasons indicate that at the beginning of the interview, the applicant said she had no siblings. The delegate put to her that her [Brother A] resides in Australia. The applicant stated that she answered no to the question because she stopped speaking to her brother after he refused to accept her sexual orientation, and that he thinks she is weird. She stated that she travelled to Australia when they were on speaking terms, but her brother did not wish to reside with her after finding out about her sexual orientation. The delegate considered the applicant had been vague and evasive in her responses.
The delegate found that the applicant’s description of realising that she was different to others around her and that she was attracted to women was unpersuasive and that she was unable to provide a spontaneous and consistent account of her personal experience as a bisexual, of the challenges she faced in concealing her identity and the discrimination and abuse she experienced. The delegate found the applicant did not speak convincingly of her attraction to women, what attracted her to her first partner in Malaysia and the details of their relationship and commitment to each other and found that her descriptions lacked credibility. The delegate did not accept that the applicant suffered difficulties, bullying or discrimination from the authorities or the society in general in Malaysia on account of her sexual orientation and did not accept that the applicant was identifiable as a member of the LGBTQI+ community in Malaysia.
Accordingly, the delegate was not satisfied that there is a real chance that, if the applicant is returned to Malaysia, she will be persecuted for one or more of the reasons in s 5J(1)(a) of the Act and that she is not a refugee as defined in s 5H(1) of the Act. The delegate therefore found the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act. The delegate was also not satisfied that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk the applicant will suffer significant harm, and was therefore not satisfied that that applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Evidence before the Tribunal
Initially, the applicant did not provide the Tribunal with any documents with her application for review. In November 2024, the applicant provided the Tribunal with a response to the hearing invitation, as well as copies of a number of medical documents relating to a [complex operation 1] in February 2023 and [an operation 2] in August 2024. The applicant sent an email dated 23 November 2024, in which she stated that there are serious problems with her physical condition, and that she had two major surgeries that year and was still in the observation period and needs to be vaccinated every five years to assist with treatment. She stated that she often sees a specialist for follow-up and has an appointment with a specialist in February 2025.
At the hearing on 26 November 2024, the applicant provided her Malaysian passport, income statements issued by the Australian Taxation Office and further medical information relating to the conditions and operations she had in 2023 and 2024, including copies of documents already provided.
On 26 November 2024 the applicant provided a completed Pre-hearing information form, with which she attached copies of some of the medical documents that had already been provided. In the Pre-hearing information form, the applicant makes the following additional claims regarding her health:
a.She discovered issues with her health at the end of 2022;
b.[In] February 2023 she underwent [the complex operation 1]. After this surgery she needed to take [medicine 1] on a daily basis and obtain regular vaccinations;
c.She had [an operation 2] [in] August 2024 and is still in recovery. She had the first post-surgery follow-up appointment with her doctor on 28 November 2024;
d.She has an appointment on 11 February 2025 with a neurologist, as after the surgeries she experienced dizziness and spinning sensations when turning or lying down; and
e.Her health has deteriorated significantly. Government support in Australia allows her to receive the necessary treatment. If she returns to Malaysia, she would not be eligible for similar assistance or financial aid. Women are also better protected in Australia.
On 13 December 2024, the applicant provided a medical certificate from [Doctor A], Clinical Associate Professor, dated 28 November 2024, which states that the applicant is undergoing medical treatment in Australia, has had surgery and will need monitoring for 12 months, as well as documents about scans. The applicant also provided a file containing five photographs featuring the applicant with another woman, as well as a written statement in which she makes the following claims:
a.Her girlfriend, [Partner B], is [an age]-year-old Malaysian;
b.They first met at their workplace, where [Partner B] was her senior. [Partner B] gave her a lot of guidance;
c.A few months after starting work, they transferred to a new [workplace] in Adelaide;
d.They lived together in Adelaide, and over time their relationship grew stronger and closer. They would go out for meals together and spend time with each other;
e.The applicant was transferred by their workplace back to Sydney. They stayed in touch through video calls and occasionally her girlfriend would fly to Sydney to visit her;
f.After she returned to Sydney, the applicant discovered she had health problems and has since undergone two surgeries and treatments. Her physical condition has become poor, and she worries that her health would be a burden to her girlfriend;
g.After a lot of consideration, the applicant asked her girlfriend to leave and ‘find her own happiness’. The applicant states that her girlfriend deserves a ‘better partner’ who can give her the life she deserves.
The applicant also provided the names of two ‘witnesses’, [named], and provided their telephone numbers. In light of the Tribunal’s findings regarding the applicant’s evidence, the Tribunal did not consider it necessary to contact these witnesses.
Evidence regarding preparation and contents of the visa application
The applicant gave evidence that she remembered making the Protection visa application and that she made the application with the help of her [brother], as her English was not good at the time. She stated that her husband typed the information in the form and that no agent was involved. The applicant confirmed that the contents of the application were read back to her by her brother, though she stated that she cannot quite remember the contents, as they were prepared a long time ago. She confirmed that the contents of her visa application form are true and correct.
Evidence regarding the applicant’s background and travel
The applicant confirmed that she is a Malaysian citizen, of Chinese ethnicity and a Buddhist. She confirmed that she has previously travelled to [two specified countries] for holidays, though she could not remember the years that she travelled. The applicant gave evidence that she lived at an address in Klang, Selangor, with her father for about 11 to 12 years prior to leaving Malaysia, and that before that she lived at another address in Selangor with her family. She stated that she never lived anywhere in Malaysia other than Selangor.
The applicant gave evidence that both of her parents are alive. Her parents are divorced. Her father moved to [Town 1] in Selangor and her mother is now living with the applicant’s [specified sibling], possibly in the Kuala Lumpur area, although she stated that she does not know where they are. The applicant stated that her [brother] is living with her in Australia. He arrived in Australia before her and she believes he holds a Student visa.
When asked whether she is in a relationship, the applicant stated that she is not in one at the moment. She stated that she was in a relationship with a Malaysian woman who returned to Malaysia because her visa expired. She gave evidence that they met when they were co-workers, and that the woman is waiting for a visa to be approved so she can return to Australia. When asked whether they are in a long-distance relationship or the relationship has ended, the applicant stated that they did not discuss breaking up or separating, though their relationship is not as close as before because of the distance.
The applicant completed high school in Malaysia. She then started college, where she studied [two named subjects] for more than three years, but she did not pass the subjects and was not awarded the qualification. She stated that she worked as [an occupation] in Malaysia, which is consistent with the employment information she provided in the visa application.
The applicant confirmed that she first arrived in Australia [in] December 2018 by plane, using her Malaysian passport. She stated that she came to Australia because she was in a relationship which ended, even though she was not over her girlfriend. She felt sad at the time, so her [brother] suggested that she come to Australia, though he was unaware at the time that her ex-partner was a woman.
Summary of claims for protection
The applicant gave evidence that she is a lesbian and that she experienced harassment and bullying in Malaysia and an incident of assault and verbal abuse. She stated that she has had surgery for two medical conditions and requires follow-up appointments with doctors.
Evidence regarding the applicant’s sexuality in Malaysia
The applicant gave evidence that she is a lesbian, and that when people saw her with her former girlfriend in Malaysia, they would talk behind their backs, tease and bully them. She first realised that she was attracted to women when she was 22 and that she is more attracted to women than men. She became aware of her feelings towards women when her girlfriend was graduating from their [named] course at college, and she had feelings that she did not want to let her go. They first met in high school and were friends, and at that stage the applicant did not realise she had feelings for her. The applicant told her friend that she liked her when she was close to graduating from college. In the beginning, her friend was scared and did not accept the applicant’s feelings, but over time they entered a relationship. They lived together for one year in the applicant’s home in Klang and shared a room. The applicant stated that they were physically intimate, which included kissing each other. When asked whether her family knew she was in a relationship, the applicant explained that she was living only with her father, who is deaf and mute and was unaware of what the applicant and her friend were doing. He was not suspicious that they shared a room because he thought they were just friends.
The applicant stated that she has no evidence of the relationship she had in Malaysia, as she did not have a telephone capable of take photographs, though she stated she has photographs of the girlfriend she had in Australia.
She stated that when she was with her girlfriend, she was able to resist any bullying or harassment, but after they broke up, she did not have this level of assistance. The applicant gave evidence that one night in 2018, after breaking up with her girlfriend, she was pulled into a lane by a group of three ‘hooligans’, who made fun of her and questioned whether she is a lesbian. She stated that she was physically and verbally assaulted and believes she was almost raped. Someone passed by and yelled at the men, causing them to run away. The applicant stated that the incident may have occurred because they may have identified her as being a lesbian because she had always been with her friend when out in public. The applicant gave evidence that she then ran away and reported the incident to the police, but the police would not make a report. She waited at the police station for two hours, and was then told by the police to leave.
Evidence regarding the applicant’s sexuality in Australia
The applicant gave evidence that she had a relationship with a woman named [Partner B variant], whom she met at work in 2019. The applicant gave the details of their workplace, which is where the applicant also currently works. They commenced their relationship roughly in 2021 and her girlfriend left Australia at the beginning of 2023, before the applicant had her surgeries. When asked whether they were physically intimate with each other, the applicant stated that they just held hands, as they had only just started their relationship.
The applicant gave evidence that she and her girlfriend were both transferred to Adelaide for their work, and their relationship developed there. The applicant was then transferred back to Sydney, after which her girlfriend would fly to Sydney for short visits.
The applicant gave evidence that she has not otherwise engaged with LGBTQI+ communities in Australia. She stated that this is because of her self-esteem issues and she has trouble interacting with others and does not like going out.
When asked whether she has changed the way she lives since moving to Australia, the applicant stated that at first, she was still very cautious of how people saw her, but then her brother told her that people in Sydney don’t care how you dress or behave, after which she noticed that pedestrians could be intimate with each other. She stated that she would not be intimate in public as she is very shy. The applicant stated that her brother in Australia was not aware of her sexuality when she arrived here. When she applied for the Protection visa, he did not accept her sexuality for a long period of time. She stated that he was very upset by the news and did not want to accept her.
Evidence regarding the applicant’s fears regarding her sexuality and returning to Malaysia
The applicant told the Tribunal that when she lived in Malaysia, she was looked down upon by others and bullied because of her sexuality. She stated that homosexuality is also illegal in Malaysia. She stated that when she was out in public with her girlfriend, people would point at them, and because of her low self-esteem she felt uncomfortable and afraid to go out. She stated that she also fears harm from hooligans, and that she may be assaulted again.
The applicant stated that neither of her parents know about her sexuality. Both of her parents are deaf and mute and are unable to talk on the phone, so she communicates with one of her aunts, who looks after her father. She stated that she told her aunt about her sexuality, and that her aunt did not accept it, but nothing further could be done. The applicant confirmed that she does not fear harm from her family in Malaysia, though she fears that people will see her differently and look down on her.
The applicant claimed that she would have difficulty moving to another location in Malaysia as she has trouble adapting to new environments, including experiencing anxiety and fear. When put to her that she relocated to Sydney, the applicant explained she was able to do this because her brother was already in Sydney. She stated that despite this, she was afraid to go out in Sydney until she became familiar with the environment.
When questioned whether she could obtain protection from the police or the authorities in Malaysia, the applicant stated that she attempted to report the assult incident to the police, but they refused to make a report.
Evidence regarding health concerns
The applicant gave evidence that she had [the complex operation 1] in February 2023, and that since then she has had to take antibiotics daily and obtain regular vaccinations. She also had [an operation 2] in August 2024, and has provided evidence of follow-up appointments. She stated that she also has an appointment with a neurologist in February 2025, regarding dizziness she experiences when she turns.
The applicant gave evidence that if she remains in Australia, she can receive better treatment than in Malaysia. She stated that she has applied for a Medicare card in Australia, and that in Malaysia she would not be able to obtain this kind of treatment as she is of Chinese ethnicity. She stated that she can still go to a public hospital to obtain treatment, but she would have to pay for it, and that with the salaries in Malaysia, the cost of health treatment would be a heavy burden.
The Tribunal discussed with the applicant information from the most recent DFAT country information report for Malaysia, which indicates that Malaysia has a well-established and universal health care system which is accessible to most of the population, especially in urban centres, and that healthcare is generally affordable, with doctor’s visits costing as little as MYR 1 (AUD 0.33) and hospital stays costing MYR (1.5 (AUD 0.50) per day.[1] The applicant responded that these may be the applicable costs in small public clinics, but the fees for surgery are not affordable. She stated that the minimum wage in Malaysia can be MYR 1000, which does not leave much for expenses. She stated that there are also waiting lists for treatment in hospitals. There can be a wait of two to three months for urgent surgery.
[1] DFAT Country Information Report, Malaysia, 24 June 2024, para 2.11.
The Tribunal also put to the applicant that her claims regarding her health concerns may not be a reason why she would meet either the refugee criterion or be eligible for complementary protection, as there does not appear to be any element of persecution or harm directed at her, and the problems she claims exist with the affordability of the health system in Malaysia apply to Malaysians generally. The applicant responded that she understood the Tribunal’s concerns and had no further evidence or arguments to provide in relation to this claim.
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, in particular whether the applicant has a well-founded fear of being persecuted in Malaysia for one or more of the five reasons set out in s.5J(1) of the Act. If she does not meet the refugee criterion, the Tribunal must consider whether the applicant meets the criteria for complementary protection, in particular, whether as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Identity findings
The applicant provided the Department and Tribunal with her Malaysian passport. On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicant is who she claims to be, that she is a national of Malaysia, which is also her receiving country.
The applicant claimed at the hearing that she does not have a right to enter and reside in any third country. On the basis of the information before the Tribunal, I accept this claim and find that the applicant does not have a right to enter and reside in any third country.
Credibility findings
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims the applicant has made. This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need, and importance of, being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
The Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’ or that it is for the reason claimed. A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant him or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169.)
On the basis of the applicant’s Malaysian passport, I accept that the applicant is from Selangor.
Findings regarding the credibility of the applicant’s claims about her sexuality
I have formed a different view to that of the delegate regarding the applicant’s testimony at the Protection visa interview with the Department. I do not consider that the applicant gave inconsistent information to the Department regarding her sexual identity. I make no adverse findings regarding the applicant’s various uses of ‘lesbian’ and ‘bisexual’ at the interview to describe her sexuality and do not consider the applicant was vague or evasive in her responses. At the hearing, the applicant described her sexuality variously as homosexual, lesbian and bisexual. I consider the use of these varying terms by the applicant is consistent with her evidence regarding her sexuality, including her evidence that she considers herself to be a lesbian because she is more attracted to women than to men. I note that at both the hearing and the Departmental interview the applicant used the term ‘homosexual’ when referring to the laws in Malaysia which target homosexuals.
Having listened to the recording of the Departmental interview, I find the applicant’s testimony at the interview regarding the realisation of her attraction to women and of her first relationship in Malaysia, to be convincing and persuasive. While I acknowledge that there are potential concerns with the applicant’s testimony, including her testimony that she did not realise that she was bisexual until she arrived in Australia, I consider that such concerns should be viewed in light of the applicant’s limited relationship experience at the time of the interview, the secretive nature of that relationship and her limited engagement with a wider community which shared her sexuality in Malaysia. I also note the Department’s procedural instruction on ‘Gender and Sexual Orientation’, which notes the difficulties LGBTQI+ applicants may have in discussing their sexuality at an interview through an interpreter. I also note that certain key aspects of the applicant’s evidence were not set out in the delegate’s reasons for decision, such as her evidence that in Australia she has tried to ‘be normal’ and to ‘love boys as well.’ Overall, I found the applicant’s evidence regarding her lesbian or bisexual sexuality in Malaysia to be consistent with the testimony provided at the interview and to be persuasive, having regard to her limited relationship experience with a woman who did not accept her own sexuality and the secretive nature of the relationship. I also make no adverse findings regarding the applicant’s lack of access to LGBTI+ services or community in Malaysia in light of the applicant’s evidence regarding the nature of her limited awareness of her sexual orientation at that time.
The applicant has provided photographic evidence in support of her claims that she entered a relationship with a Malaysian woman in Australia. These photographs show the applicant with another woman in sightseeing settings, and while they could be seen as photographs depicting two friends, I accept that a degree of affection is evident in the photographs. I also find the applicant’s oral evidence of her relationship with a woman in Australia to be compelling and persuasive. I therefore accept the applicant entered a same-sex relationship with a woman in Australia. I make no adverse findings regarding the applicant’s evidence of her lack of engagement with LGBTQI+ organisations, resources or communities in Australia in light of her explanation of the difficulties she experiences in engaging with people and her feelings of isolation.
Having listened to the recording of the Departmental interview, I consider the applicant gave consistent evidence at both the Departmental interview and hearing regarding the assault she experienced in 2018 and of bullying she experienced in Malaysia. I accept the applicant’s evidence that she was cornered in an alley by a group of men, who bullied her and questioned her about her sexuality and pushed and punched her. I accept that the applicant feared that she would be assaulted further by the men, and possibly raped, had it not been for the intervention of a stranger. I also accept her evidence that she attempted to report the matter to the police, but the police refused to issue a report.
I place no weight on discrepancies in the evidence noted by the delegate, such as the delegate’s concern that the applicant’s failure to tell the Department at interview that she had a brother in Australia. Having listened to the audio recording of the hearing, I consider the questions asked by the Department at interview about her family were of a general nature and open to different interpretations and responses from the applicant, such as questions such as ‘Tell me about your relationship with your family’, in response to which the applicant responded that she seldom contacts them. I accept the applicant’s explanation that at the time of the interview, her brother did not accept her applicant’s sexual orientation and was refusing to contact her. I accept that the applicant has since resolved her relationship with her brother, and while he does not accept her sexuality, they currently live together.
I also place no weight on the delegate’s concern that the applicant has been sending funds to two people named in Malaysia, despite claiming at the Departmental interview that she had last contacted her family in Malaysia several months prior to the interview. I accept the applicant’s explanation that she did not know who the delegate was referring to as the names were pronounced incorrectly. Having listened to the audio recording of the interview, I accept the applicant was confused by the pronunciation of these names, which the interpreter also struggled to relay accurately to the applicant. I accept that the applicant has provided funds to a paternal aunt in Malaysia, who is caring for her father who has speech and hearing impairments, and that the applicant is unable to communicate directly with her father by telephone because of these communication difficulties. I make no adverse findings in relation to the applicant’s evidence that she continues to support her father in Malaysia.
Does the applicant satisfy the refugee criterion for protection?
I have accepted that the applicant identifies as a lesbian woman or a bisexual whose primary sexual attraction is towards women. I accept that she entered a relationship with a woman in Malaysia, which included physical intimacy and she lived with her partner for approximately one year. I accept that in Malaysia the applicant was bullied by certain members of the broader community in relation to her sexual orientation and on one occasion was assaulted while in public. I also accept that the applicant entered a relationship with a woman in Australia, which also included cohabitation. While the applicant’s evidence as to whether she continues to be in this relationship is unclear, I accept that this is due to the distance between the applicant and her partner. On the basis of the applicant’s previous relationship history, and her evidence that her partner is attempting to apply for a further visa to Australia, I accept the applicant would seek to be in a relationship with her partner if she were to return to Malaysia.
The most recent DFAT country information report advises that Malaysia is a conservative Islamic nation and is generally intolerant of LGBTQIA+ identities and behaviours and that adult same-sex acts are illegal, regardless of age and consent.[2] There are 52 laws that criminalise different forms of LGBTQIA+ behaviour, with prosecutions having taken place under these laws including under s 377A/377B of the Penal Code in relation to ‘Unnatural Offences’, which includes penalties of whipping and up to 20 years in prison.[3] DFAT advises that while government stances on LGBTQIA+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and penal code offences.[4] The US Department of State reports that in February 2021, Malaysia’s Federal Court declared that Selangor’s state laws prohibiting same-sex acts as offences under syariah law are invalid on the grounds that such laws fall under the jurisdiction of federal law.[5] Despite this, members of the LGBTQIA+ community are more typically prosecuted under state-based syariah legislation rather than federal law, with a syariah court in Terengganu state sentencing two women in 2018 to six strokes of the cane and a fine of MYR3,300 (AUD 1,100) after convicting them of having lesbian sex.[6] DFAT advises that while the investigation of such offences is reasonably common, and prosecutions have occurred, successful prosecutions are rare.[7]
[2] DFAT Country Information Report, Malaysia, 24 June 2024, para 3.126.
[3] DFAT Country Information Report, Malaysia, 24 June 2024, para 3.127.
[4] DFAT Country Information Report, Malaysia, 24 June 2024, para 3.128.
[5] ‘2020 Country Reports on Human Rights, Malaysia’, US Department of State, 30 March 2021, p.35.
[6] DFAT Country Information Report, Malaysia, 24 June 2024, para 3.131.
[7] DFAT Country Information Report, Malaysia, 24 June 2024, para 3.131.
DFAT advises that members of the LGBTQIA+ community in Malaysia experience discrimination, and the level and frequency of discrimination typically correlates with factors such as socio-economic status, religion, geographic location and their degree of openness about their sexual orientation or identity.[8] A United Kingdom Home Office report also indicates that there is a strong social taboo against LGBTIQA+ issues, with members of these communities reported to have faced threats, stigma, violence, including sexual violence, and discrimination, with well-educated, wealthier individuals in urban areas being less likely to have to conceal their sexual orientation from family and friends.[9]
[8] DFAT Country Information Report, Malaysia, 24 June 2024, para 3.147.
[9] ‘Country policy and information note: sexual orientation and gender identity or expression, Malaysia’, United Kingdom Home Office, June 2020, 8 July 2024.
DFAT advises that lesbians are much less visible in Malaysia than other members of the LGBTQIA+ community.[10] While the treatment of lesbians is worse for Muslim women as syariah criminalises sexual activity between women, such laws also have a large impact on non-Muslim lesbians by harming their relationship with authorities.[11]
[10] DFAT Country Information Report, Malaysia, 24 June 2024, para 3.138.
[11] DFAT Country Information Report, Malaysia, 24 June 2024, para 3.138.
I find that lesbian Malaysians or bisexual Malaysian women are particular social groups for the purpose of assessing the applicant’s fear of persecution.
I accept that the applicant has already experienced harm in the form of harassment, bullying and being physically assault by members of the public in an incident in 2018. I accept that the assault was the result of the applicant being identified or perceived to be a lesbian or because she was perceived to be different from other Malaysians. I accept that the applicant being identified in this way was heightened by the same-sex relationship she entered into in Malaysia, and that she was identified as such despite living discreetly. I also accept that in Australia the applicant entered a second relationship, with a woman who has now returned to Malaysia, and that she lived somewhat more openly. Although the Tribunal notes the applicant’s evidence that she would not demonstrate affection to a partner in public because she is very shy, it notes that the applicant has disclosed her sexual orientation to her brother in Australia and her aunt in Malaysia since arriving in Australia. In light of the applicant’s continued development of her sexuality, I consider the applicant would seek to live more openly regarding her sexual orientation in the reasonably foreseeable future.
The harm feared by the applicant includes discrimination, bullying, harassment, arrest, physical and emotional abuse. The applicant also fears harm from authorities in Malaysia because of her sexuality. I note that as a Buddhist, the applicant is not subject to syariah law and is at a lower risk of harm than lesbians of Malay Muslim background, but consider that she still comes within the scope of some federal criminal laws that apply throughout Malaysia. The UK Home Office notes that there are very few available examples of societal violence against LGBI persons given there are no official statistics, making it difficult to assess the scale, frequency and severity of incidents.[12] The Tribunal accepts that the laws criminalising homosexual acts and the ongoing anti-LGBTQI sentiments of political and religious leaders provide an environment which may encourage discrimination, harassment, and violence against LGBTQIA+ people in Malaysia.[13] I have also accepted that the applicant has experienced an assault in the past, essentially because of her sexual orientation.
[12] ‘Country policy and information note: sexual orientation and gender identity or expression, Malaysia’, United Kingdom Home Office, June 2020, 8 July 2024, p. 11.
[13] DFAT Country Information Report, Malaysia, 24 June 2024, paras 3.126 and 3.129.
Based on the country information set out above, and the evidence of an assault she experienced prior to leaving Malaysia, I find there is a real chance the applicant would be subjected to serious harm on return to Malaysia. The Tribunal accepts that the applicant’s identification as an LGBTQIA+ person would be the essential and significant reason for persecution, and that the persecution would involve systematic and discriminatory conduct.
The Tribunal notes in passing that, given the above findings, it is not required to consider the applicant’s claims regarding her health conditions in any detail. I note briefly that the applicant’s health conditions are not a sufficient basis for a claim for refugee status, given she does not have a well-founded fear of persecution arising from these medical conditions. On the basis of the country information discussed with the applicant about health services being generally available in Malaysia, I do not accept that she would be unable to access suitable healthcare services in Malaysia for the follow-up treatment relating to [an operation 2] or her [complex operation 1], nor for her referral to a neurologist for complaints of dizziness. I also find that any inability by the applicant to access healthcare services in Malaysia would apply to the Malaysian population generally and does not involve an element of persecution or discrimination. I find that there is not a real chance the applicant would be subjected to serious harm on the basis of her health conditions on return to Malaysia.
As to the applicant’s claims regarding her sexuality, I find that the applicant cannot be expected to conceal or alter her sexual orientation, or to modify her behaviour as to do would require her to conceal her true sexual orientation (s 5J(3)(c)(vi) of the Act).
The Tribunal has had regard to the country information that the state is one of the agents of persecution. The Tribunal is satisfied that effective protection measures are not available and that the real chance of persecution relates to all areas of Malaysia. I have also had regard to the applicant’s evidence that she would have trouble relocating somewhere where she knows no-one, as she fears leaving her home in unfamiliar environments and would require the assistance of a friend or family member to overcome this.
The Tribunal is not satisfied that the applicant would be able to access effective protection from harm from non-state actors, given that the country information indicates that the Malaysian government and its law enforcement officials are at times hostile towards LGBTQIA+ communities in Malaysia, and that they may be unwilling to offer protection.[14] The Tribunal also notes in this regard the applicant’s evidence that she reported the assault which occurred in 2018, but the police refused to issue a report and she was told to leave the police station.
[14] ‘Country policy and information note: sexual orientation and gender identity or expression, Malaysia’, United Kingdom Home Office, June 2020, 8 July 2024, p. 4.
There is nothing before the Tribunal to indicate the applicant has a right to enter and reside in any other country such that Australia would be taken not to have protection obligations: s 36(3).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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.
Dates of hearing(s): 26 November and 19 December 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.
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