2215846 (Refugee) - [2024] ARTA 903

2215846 (REFUGEE) [2024] ARTA 903 (18 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Representative: Mr Wassef Joe Botros (MARN: 1280764)
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2215846
Tribunal:Senior Member G Cranwell
Date:18 December 2024

Place:Brisbane
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 18 December 2024 at 10:20am
CATCHWORDS
REFUGEE – protection visa – Malaysia – membership of particular social group – homosexual man – disowned by family after being seen with friend in public – timing and circumstances of application for ETA, being seen with friend and departing – sister’s protection visa as homosexual woman – applicant’s application for protection visa as student visa expired – no social activity or relationships in Australia – consistent claims and evidence – supporting statements by sister and employer – country information – laws and societal attitudes – concealing of identity or modification of behaviour not permissible, risks relate to all areas, and effective protection not available – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), (c), (2), (3), (4), (5), 5L, 36(2)(a), 65, 367A
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 of a decision made by a delegate of the Minister for Home Affairs on 24 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 7 June 2021.
The applicant appeared before the Tribunal on 11 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND
Evidence before the Department
The applicant’s claims were set out in his protection visa application as follows:
I am a Malaysia citizen. I fled to Australia because members of the LGBT community are persecuted in Malaysia, and I am unable to live there safely because of my sexuality and because of my appearance as a homosexual.
On 5 July 2022, the Department requested further information from the applicant. The applicant did not respond to this request.
Evidence before the Tribunal
The applicant provided the Tribunal with a statutory declaration dated 28 August 2024. The applicant stated:
I was born and raised In Malaysia. I am [Age] years old. I was raised in a devout Budah (sic) religious family. I am the youngest sibling in our family. I have one sister whose name is [Ms A], who is [Age] years old. The last I had contact with her, she was living in Sydney. My sister Is an Australian Permanent Resident. I also have a brother whose name is [Mr B], he is around [Age] years old. My brother lives in Brisbane and is currently on a student visa. I also have another brother whose name is [Mr C], he lives in Malaysia and is around [Age] years old. My father passed away when I was [Age] years old.
My mum is living with my older brother in Malaysia. My eldest brother Is married and has a family. Sadly, My Mum disowned me because I am homosexual and I have no contact with her. Both my Mum and my brother are observing strict Budha (sic) faith.
My sister [Ms A] is also a gay person. Fearing severe persecution in Malaysia, she could not return back and consequently applied for a protection visa in November 2016. The protection visa was granted on approximately 30 August 2023.
When I first lodged my protection visa application on 07 June 2021, I regret that I did not received sound advice. I conveyed my story as detailed in this Statutory Declaration to the person who assisted me. I also presented the evidence that I am now submitting, however, it was mentioned by that person that, "it is not important for now". I believe that if the evidence and my account were presented in a proper light, the outcome of my protection visa might have been different.
In December 2017, I became close to a friend named [Mr D]. I met [Mr D] in my town Sabah near the Mountain of Kota Kinabalu. We had a good meaningful chat about where we live, our families, and work. We became friends, and our friendship blossomed into a deep and meaningful connection, and we became soul mates, sharing many intimate. happy, and significant moments together.
This aspect of my life was kept hidden from my family, friends, and the broader community in Malaysia due to the severe social stigma associated with homosexuality. In Malaysia, a predominantly Muslim country, homosexuality is strictly forbidden and considered an abomination for both men and women. [Mr D] and I could not freely express our feelings for each other. We had to lead kind of double lives, pretending to conform to societal norms. Our relationship was forbidden not only by the community at large but also by our families, particularly those who are religious.
Under Islamic laws in Malaysia, being identified as gay or showing affection, such as holding hands with another man, can lead to arrest, public lashings, and Imprisonment. There is no semblance of freedom to express one's sexual orientation. Consequently, [Mr D] and I had no choice but to keep our relationship and sexual preferences secret. Love, care, and affection between Individuals of the same sex are strictly forbidden. heavily stigmatised, and regarded as an abhorrent act. It can not be forgiven or removed.
I never disclosed my homosexuality to my family or friends for fear of deep resentment, isolation, embarrassment. and harm in Malaysia. The harm is not just a risk or hypothetical, it is real severe harm once a person is caught and condemned.
My homosexuality started In approximately mid-January 2018. My partner [Mr D] and I have a strong connection with each other and also our relationship is based on love, trust and commitment. However, as mentioned above, we had to maintain secrecy due to fear of our families and the broader community as well as the strict Islamic Laws In that country once we get caught and condemned.
About the middle of March 2018, [Mr D] and I decided to go somewhere for a few days far away from Sabah. [Mr D] booked us a trip to Malacca which is about two and half hours flight from Sabah. We visited a historical church building and had lunch at [a] Cafe. We really enjoyed every moment together, but we still had to be careful. It was our first time to visit Malacca. After lunch, we decided to take a memorable photo together in front of a lovely large [sculpture]. [Mr D] and I hugged when we took a selfie. I suddenly looked and I saw 2 of my school friends with whom I had always been In touch. They were right there looking at me. I saw disgust in their eyes. I almost fell down, and I told [Mr D] afterwards. We left the place where we were taking the photo quickly. We then returned back to Sabah 2 days later.
When I returned back home to Sabah, after a few days and without fail, my incident with [Mr D] in Malacca was almost known to everyone including my mother. Sabah is a small town.
I just wanted to get out of this nightmare including systematic harassment, degradation. real fear and humiliation. I am a human being with feelings and dignity and I have basic rights to choose whom I wish to be with. So, I decided to travel and visit my sister in Australia.
I was extremely lucky that my visa application was granted to travel to Australia.
I left Malaysia [in] April 2018 on my way to Australia. After long contemplation of what will happen to me if I return to Malaysia and how will the society as well as my family who know me will react? how will I be able to continue to lead my life and sustain my living in a normal unhindered way with total freedom? I asked some of my friends in Australia whom I blindly trust. they recommended a person who could help me apply for a protection visa.
On 07 June 2021, I submitted an application for a protection visa in Australia.
I am now providing material evidence which I consider relevant in support of the review application.
I see protection in Australia because,
a) I genuinely hold grave and real fear for my life and safety.
b) If I am forced to return to Malaysia, the police who are predominantly Muslims will not provide me with any degree of support or protection of any kind due to their ingrained Islamic belief. Therefore, I have no other means of receiving real protection from any other government agency.
c) I have nowhere to go or hide in any part of Malaysia, I have no freedom to be who I am or be able to lead a meaningful sustainable life. Even if I relocated to any other part of Malaysia, I would remain as a fugitive, and its not easy at all to keep running and keep finding work to sustain myself. Work will not be waiting just for me wherever I go to hide. My family has already rejected me and I was made aware that I am treated as an outcast.
d) There is a real chance of being physically harmed if I am recognised anywhere In public. Once caught and condemned, I will be lashed In public and serve a prison sentence to be made an example of.
e) I have no right of residency in any other country.
The applicant also provided a number of articles relating to the treatment of LGBT people in Malaysia.
The applicant’s representative lodged pre-hearing submissions dated 20 November 2024. The submissions included the following passage:
The fact that [the applicant]’s sister was granted protection status in Australia underscores a significant point: …
If [the applicant]’s sister faced persecution for reasons related to shared familial (sic), and national laws in Malaysia or societal factors concerning sexual orientation, it bolsters [the applicant]’s credibility and substantiates his claims of risk upon return to Malaysia.
For the avoidance of doubt, the Tribunal notes that its knowledge of [the applicant]’s sister’s protection claims is limited to the information disclosed by the applicant and his representative.
At the hearing, the applicant confirmed that he was granted an electronic travel authorisation (ETA) to enter Australia on 3 January 2018. He arrived in Australia [in] April 2018. He was granted a student visa on 12 July 2018. The applicant applied for a protection visa on 7 June 2021.
The applicant also confirmed that his statutory declaration was prepared with the assistance of his representative. The representative read back the applicant’s claims to him, and the applicant was satisfied that they were correct.
The Tribunal asked the applicant what he feared if he returned to Malaysia. The applicant stated that he feared returning to Malaysia because he is gay.
The Tribunal asked the applicant when he first realised that he was gay. The applicant stated that he first realised he was gay in 2017 when he met [Mr D]. Before 2017, the applicant could not decide whether he was gay or not.
The Tribunal asked the applicant whether he had any relationships with females before 2017. The applicant stated that he did not.
The applicant stated that he met [Mr D] in around December 2017. They met in Sabah in a bar. They subsequently shared a meal. After they first met, the applicant and [Mr D] saw each other almost daily. They would go out for meals at places where there were not many people.
The Tribunal asked the applicant how he identified [Mr D] as being gay. The applicant stated that this was due to [Mr D]’s body language and words, and the applicant’s feelings.
The Tribunal asked the applicant whether they had a sexual relationship. The applicant stated that they did not reach the level of a sexual relationship. They kissed each other. They did not progress to a sexual relationship as they did not want to get caught in the act.
The applicant stated that they did not stay overnight with each other, as they did not want people to find out they were gay. When they went to Malacca, the applicant wanted to stay in the same room, but [Mr D] suggested separate rooms and moving from hotel to hotel.
The Tribunal asked the applicant when he and [Mr D] went to Malacca. The applicant stated that they went to Malacca in March 2018. They went to [a] Café for lunch. [Mr D] decided to take a photo in front of the [sign]. Before the took the selfie, the applicant saw two school friends. He was shocked and told [Mr D] that they had better leave. After two days, the they flew back to Sabah. After a few days, the rumour of the applicant and [Mr D]’s relationship had spread, including to the applicant’s mother.
The Tribunal asked the applicant to provide the names of his two school friends. The applicant provided two names, who he said were brothers.
The Tribunal asked the applicant what his mother said. The applicant stated that his mother confronted him after hearing that he hugged [Mr D] in Malacca. The applicant did not confirm he was gay. His mother is a Buddhist and does not accept homosexuality. The applicant told her that he hugged [Mr D] as a friend.
The Tribunal asked the applicant whether his mother knows his sister is gay. The applicant stated that his mother found out about his sister when she got a protection visa.
The Tribunal asked the applicant whether his mother knows that he is gay. The applicant stated that his mother thinks he is gay even though he denies it.
The Tribunal asked the applicant whether his sister knows that he is gay. The applicant stated that his sister found out after he came to Australia.
The Tribunal asked the applicant what happened after he returned from Malacca. The applicant stated that his mother said he would not be part of the family any more if he were gay. His mother was very upset, and the applicant finally decided to come to Australia.
The Tribunal asked the applicant when he decided to leave Malaysia. The applicant stated he decided to come to Australia in April.
The Tribunal asked the applicant when he applied for an ETA and purchased an airline ticket. The applicant stated that he did this in March.
The Tribunal asked the applicant how it was that he came to apply for an ETA and purchase an airline ticket in March, when he did not decide to come to Australia until April. The applicant stated that he had already decided to come to Australia to see his sister.
The Tribunal asked the applicant whether he decided to visit his sister before or after the incident in Malacca. The applicant stated that he decided to come to Australia after the incident in Malacca.
The Tribunal asked the applicant to confirm that he only decided to visit his sister in Australia after the incident in Malacca. The applicant stated that this was correct.
The Tribunal put to the applicant that he had agreed earlier in the hearing that he was granted an ETA on 3 January 2018, which was several months before the incident in Malacca. The applicant stated that he applied for an ETA in January, but did not know whether it was approved or not. He applied again in March, and found out that it had already been granted.
The Tribunal put to the applicant that his suggested that he had decided to come to Australia before the incident in Malacca. The applicant stated that before he went to Malacca, he had planned to come to Australia to study. He did not know about student visas, only the ETA.
The Tribunal put to the applicant that his answers were contradictory, with the Tribunal having asked him twice whether he had decided to come to Australia before or after the Malacca incident. The applicant stated that before Malacca, he had planned to come to Australia to study to expand his education. After the incident, he decided to come to Australia.
The Tribunal asked the applicant where he stayed after he came to Australia. The applicant stated that he stayed with his sister in Melbourne. They moved to Queensland in May 2018. His sister subsequently moved to Sydney, and the applicant has remained in Queensland.
The Tribunal asked the applicant whether he had discussed his sister’s visa situation in Australia. The applicant stated that they did not discuss his sister’s protection visa application while they were in Melbourne. However, they did talk about her situation as LGBT and her protection visa application when they moved to Queensland.
The Tribunal noted that the applicant’s account was that he was aware of the availability of a protection visa on LGBT grounds in May 2018 but went on to obtain a student visa in July 2018. It asked the applicant why he did not apply for a protection visa. The applicant stated that he had wanted to come to Australia to study. Their knowledge of protection visa applications at that time was very shallow. His sister told him that a protection visa application was very difficult, and he intended to study so applied for a student visa.
The Tribunal asked the applicant why he had left it until his student visa expired to lodge a protection visa application. The applicant stated that he was thinking about applying for a protection visa while he was on a student visa. He asked around for anyone who could explain the process to him. The applicant was told that he had to wait for the student visa to expire before applying for a protection visa.
The Tribunal asked the applicant why he did not ask his sister, with whom he was living at the time. The applicant stated that his sister applied for a protection visa straight away, and did not have a student visa.
The Tribunal asked the applicant what he studied and where he was working. The applicant stated that he studied [subject], but was working as [an occupation].
The Tribunal noted that the applicant was not working in the area in which he studied. The applicant stated that [subject] were not on the skilled visa list.
The Tribunal asked the applicant whether he only applied for a protection visa when he found out that he was not eligible for a skilled visa. The applicant stated that his intention was to apply for a protection visa. His student visa was to expand his education. He was hoping that the rumours around his sexuality would die out.
The Tribunal asked the applicant whether he had been in a relationship with a male in the six and a half years he has been in Australia. The applicant stated that he works long hours. It takes time to find the right person. He does not want just anyone.
The Tribunal put to the applicant that Australia is on the whole very open to same-sex relationships, and it was surprised that the applicant had not had any relationships in the past six and a half years. The applicant stated that he did meet a gay person, but that person was not suitable for him.
The Tribunal noted that the applicant had not provided any evidence from [Mr D], his sister or anyone else who is aware that he is gay. The applicant stated that he is no longer in contact with [Mr D]. His sister is busy with her own visa. He was not aware that he had to provide evidence.
The Tribunal explained to the applicant that it was going to put a number of concerns to him that might cause it to doubt whether he is gay. The Tribunal explained that it had not made up its mind, and was giving him an opportunity to comment.
The first concern was that the applicant had been granted an ETA on 3 January 2018, several months before the Malacca incident in March 2018. This suggested that he intended to travel to Australia, and might cause it to doubt whether the Malacca incident and his relationship with [Mr D] occurred. The applicant stated that the ETA in January and the Malacca incident in March were two separate things. Before the March incident, the applicant had intended to come to Australia to study. That is why he applied for an ETA. Then the March incident reinforced his intention to study in Australia.

The Tribunal asked the applicant why he did not apply for a student visa rather than an ETA, which did not permit him to study. The applicant stated that he only knew about the ETA process to come to Australia. He knew the ETA does not permit study, and he looked at where he could study after he came to Australia. He found someone to help him to apply for a student visa.
The Tribunal asked the applicant whether he explored study options online or in person after he came to Australia. The applicant stated that he used Google.
The Tribunal asked the applicant why he did not search with Google before he left Malaysia, rather than waiting until he arrived in Australia. The applicant stated that the information he found in Malaysia suggested high entry requirements.
The Tribunal suggested to the applicant that the information available to him online in Malaysia would have been the same as was available to him in Australia. The applicant did not agree with this, and stated it was difficult to find the information in Malaysia.
The second concern was that the applicant had been aware that his sister had applied for a protection visa on LGBT grounds, but had delayed in applying for a protection visa himself until his student visa was due to expire. This delay may cause the Tribunal to have doubts about the applicant’s claims to be gay. The applicant stated that this seems to be inconsistent. His intention was to study, and he was hoping the rumours would die out.
The third concern was that the applicant had provided no evidence that he had disclosed to anyone in Australia that he is gay, despite having been here for six and a half years. The applicant stated that he did not know he was able to provide evidence to the Tribunal. He is looking for a partner, but cannot disappoint his employer. It is important for him to find the right person.
The representative made oral submissions. The representative reiterated the explanations provided by the applicant to the concerns raised by the Tribunal.
The Tribunal offered to take telephone evidence from the applicant’s sister if she was available. The applicant attempted to telephone his sister twice, but she did not answer. The Tribunal gave the applicant seven days after the hearing to provide a written statement from his sister and anyone else should he wish to.
Following the hearing, the applicant provided a statement from his sister, [Ms A]. The sister relevantly stated:
I confirm my brother, [the applicant], is a gay person since 2017. We as family and the closest person to him, have had deep, heartfelt discussions about his identity and his experiences. I recall a particularly emotional conversation when he confided in me about his struggles with being accepted for who he truly is. He shared the immense fear and pain he felt in revealing his identity out of fear, especially within our conservative and traditional family environment as well as the legal system in Malaysia criminalising gay people.
From these discussions, I have witnessed the courage it took for my brother to live authentically, despite knowing that his truth might alienate him from some of our loved ones. His journey has been difficult, but it has also been one of resilience, and I deeply admire him for it.
Our family in Malaysia has disowned both of us, primarily due to their inability to accept my brother’s sexual orientation. When my brother came out, the backlash from our family was harsh and devastating. This rejection was not only directed at him but also extended to me for supporting him. This estrangement has been emotionally taxing for both of us, leaving us with no familial support from our homeland.
The applicant also provided a statement from his employer, [Mr E] of [Company]. The employer relevantly stated:
As part of our inclusive and respectful workplace culture, [Company] values diversity and the individuality of our employees. [The applicant] has opening shared with his colleagues and management, including myself, that he is a gay man. This openness has been met with acceptance and respect among his co-workers and supervisors.
[The applicant]’s honesty about his sexual orientation demonstrates his integrity and courage. This openness has not only helped foster an inclusive work environment but has also inspired a positive dialogue about diversity and acceptance in the workplace.
…
We are aware of [the applicant]’s circumstances and the challenges he has endured due to his sexual orientation, including lack of familial acceptance and the societal stigma he faces in his home country.
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 Department file includes a copy of the applicant’s Malaysian passport. Given this and the absence of any evidence to the contrary, the Tribunal finds that Malaysia is his country of nationality and also his receiving country for the purposes of the definition ins 5(1) and s 36(2)(aa) of the Act.
As noted above, the applicant provided the Tribunal with a statutory declaration which provided further details of his claim which were not included in the protection visa application before the Department. Section 367A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred.
The Tribunal accepts the applicant’s explanation that he provided a detailed account of his claims to the person who was assisting him with his protection visa application, but was incorrectly advised that such details were not required at that stage. Accordingly, the Tribunal accepts that the has provided a reasonable explanation as to the circumstances in which his protection visa application was completed. The Tribunal does not draw any unfavourable inferences from the credibility of the applicant’s new claims.
Does the applicant satisfy the refugee criterion for protection?
The applicant’s claims to satisfy the refugee criterion are based on his claims that he is a gay or homosexual man. The Tribunal notes at the outset that claims relating to sexual orientation are inherently difficult to prove or disprove in the context of a hearing.
At the hearing, the applicant provided an account of his claims that the Tribunal considers to be consistent with his statutory declaration. The Tribunal notes that both of these accounts are also consistent with the claims in the protection visa application, although the latter claims are lacking in detail.
The applicant’s claims are supported by the statements of his sister and employer. The Tribunal has placed little weight on the sister’s statement in circumstances where she has also made an application for protection based on her own sexual orientation. However, the Tribunal considers the employer’s statement to be highly persuasive.
The Tribunal has ultimately placed no weight on the applicant’s delay in lodging a protection visa application. It is widely accepted that there are a number of reasons why applicants may hesitate to raise their sexual orientation, including:[1]
·their discomfort in discussing such a personal topic in the presence of unfamiliar authority figures;
·their lack of awareness that they may claim protection on the basis of their sexual orientation; and
·fear that their disclosure will not be confidential and have repercussions if the information is discovered by family, friends and state authorities.
[1] See Glen Cranwell, ‘Refugees and sexual orientation: reflections on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs’ (2022) 91 Immigration Review [1057].
In the present case, the applicant was aware that he could claim protection on the basis of his sexual orientation through his sister. The applicant did not raise any discomfort or fear of disclosure when the issue of delay was raised with him at the hearing. However, the Tribunal considers that the applicant’s evidence that he was hoping the rumours relating to his sexuality in Malaysia die out without him having to make a protection visa application has the ring of truth to it.
To the extent that the Tribunal had concerns about the applicant’s lack of disclosure of his sexual orientation in Australia, these concerns were addressed by the statements from the applicant’s sister and employer. The Tribunal also accepts the applicant’s explanation that he has not found the right person to enter into a relationship with. In this regard, the Tribunal notes that the United Nations High Commissioner for Refugees Guidelines state that:[2]
Lack of engagement with other members of the LGBTI community in the country of asylum or failure to join LGBTI groups there may be explained by economic factors, geographic location, language and/or cultural barriers, lack of such opportunities, personal choices or a fear of exposure.
[2] United Nations High Commissioner for Refugees, Guidelines on International Protection No 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (2012) [63(viii)].
The Tribunal’s most significant concern related to the ETA having been granted on 3 January 2018. In the applicant’s statutory declaration, he stated:
I just wanted to get out of this nightmare … So, I decided to travel and visit my sister in Australia.
I was extremely lucky that my visa application was granted to travel to Australia.
At the hearing, the applicant also gave oral evidence that he only decided to visit his sister in Australia after the Malacca incident in March 2018. This oral evidence, along with his statutory declaration, is plainly inconsistent with him having been granted the ETA on 3 January 2018. The Tribunal did not find the applicant’s explanation that he had previously applied for an ETA because he wanted to study in Australia to be convincing, in circumstances where he knew that an ETA does not permit study. The Tribunal also found the applicant’s claims that he was unable to access information online about studying in Australia from Malaysia to be similarly unconvincing.
The Tribunal considers the most likely explanation is that the applicant applied for and was granted the ETA with the intention of visiting his sister. The Tribunal considers that the applicant’s evidence that he only decided to come to Australia after the Malacca incident in March 2018 was an embellishment designed to bolster his protection claims. Regrettably, such embellishments invariably have the opposite effect.
While it still retains some concerns in relation to the applicant having been granted an ETA on 3 January 2018, several months before the Malacca incident in March 2018, the balance of the evidence leads the Tribunal to accept the applicant’s claims relating to his sexual orientation. The applicant has provided consistent accounts of his relationship with [Mr A]. He has also provided evidence that he is disclosed his homosexuality since his arrival in Australia. In this regard, the Tribunal places considerable weight on the statement of his employer.
The most recent report of the Department of Foreign Affairs and Trade provides the following information on sexual orientation in Malaysia:[3]
As a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent. The Malaysian Penal Code defines ‘carnal intercourse against the order of nature’ as involving the introduction of the penis into another person’s anus or mouth (to the point of penetration). Oral heterosexual sex performed upon a man is also an offence, although DFAT is not aware of any prosecutions for this act; oral sex performed upon a woman is not an offence.
Across Malaysia there are 52 laws that criminalise different forms of LGBTQIA+ behaviour. Prosecutions have taken place under these laws, including under Section 377A/377B (Unnatural Offences) of the Penal Code, which includes penalties of whipping and up to 20 years in prison. Numerous state-level syariah-based laws prohibit same-sex relations and non-normative gender expression. In February 2021, a nine-judge panel of the Federal Court unanimously declared that a Selangor syariah law criminalising ‘unnatural sex’ was unconstitutional. This means that the federal law stands, but that State laws against same-sex sexual activity are invalid. In-country sources reported in 2022 that three states added new laws relating to LGBTQIA+ people based on syariah over the last five years.
While government stances on LGBTQIA+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and penal code offences. These laws prohibit males cross-dressing and/or presenting as women, and in some cases, females cross-dressing and/or presenting as men.
Successive Malaysian Prime Ministers have made anti-LGBTQIA+ statements. Most recently, in January 2023, Prime Minister Anwar said recognising LGBTQIA+ identities and behaviours ‘will not happen, and God willing under my administration this is not going to happen.’ In-country sources told DFAT that the environment for LGBTQIA+ people had not improved under the Anwar Government.
JAKIM and other state level religious authorities have occasionally conducted raids on LGBTQIA+ events. On 30 October 2022, RMP and the Federal Territories Islamic Religious Department (JAWI) raided a Halloween event attended by members of the LGBTQIA+ community in Kuala Lumpur and arrested at least 20 people. Malaysian NGO Justice for Sisters reported in 2022 that 24 people were being investigated for offences including: being males posing as women; ‘encouraging vice’; and ‘indecent acts’ in a public place. State officials have conducted raids on private premises, sometimes accompanied by members of the RMP. Some in-country sources reported that authorities conducted such raids as a means of creating income through extortion and blackmail.
Members of the LGBTQIA+ community are typically prosecuted under state-based syariah legislation rather than federal law. In September 2018, a syariah court in Terengganu state sentenced two women to six strokes of the cane and a fine of MYR3,300 (AUD 1,100) after convicting them of having lesbian sex. The caning, carried out in a courtroom in front of 100 witnesses, was the first such sentence to be ordered in relation to a LGBTQIA+ case since 2010. While the investigation of such offences is reasonably common, and prosecutions have occurred, successful prosecutions are rare.
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report: Malaysia, 24 June 2024 (‘DFAT Report’) at [3.126]-[3.131].
On the basis of the country information set out above, the Tribunal accepts that there is a real chance that the applicant would suffer serious harm if he were to return to Malaysia in the reasonably foreseeable future. In particular, the applicant may be subjected to blackmail, invasion of privacy, and verbal and/or physical harassment or intimidation by members of the Malaysian community were he to return to Malaysia and live openly as a gay man. The Tribunal accepts that this harm may amount to significant physical harassment and/or significant physical ill-treatment of the applicant for the purposes of s 5J(5) of the Act.
The Tribunal accepts that the applicant is a member of a particular social group, namely “gay men in Malaysia”. The Tribunal considers that the group “gay men in Malaysia” is identifiable by the characteristics of gender, sexual orientation and nationality, and that these characteristics or attributes are not a shared fear of persecution for the purposes of s 5L of the Act. The Tribunal accepts that the harm the applicant fears from the Malaysian community is for the essential and significant reason of his membership of this particular social group, and that it involves systemic and discriminatory conduct for the purposes of s 5J(1)(a) and s 5J(4) of the Act.
The Tribunal accepts that if the applicant was to conceal his identity as a gay man, he would be doing so to avoid the threat of serious harm for the purposes of s 5J(3) of the Act.
On the basis of the country information set out above, the Tribunal accepts that social and government attitudes of hostility towards gay men in Malaysia are such that the risks faced by the applicant relate to all areas of Malaysia for the purposes of s 5J(1)(c) of the Act.
Further, the Tribunal is not satisfied that the applicant would be able to access effective protection from the harm for the purposes of s 5J(2) of the Act. The country information set out above indicates that the Malaysia government and its law enforcement officials are at times hostile towards the LGBTQIA+ community in Malaysia, which leads the Tribunal to find that the harm feared would either by inflicted by the state or its agents, or that the state would be complicit in the harm feared.

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.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, 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.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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