2215938 (Refugee) - [2025] ARTA 774

2215938 (REFUGEE) [2025] ARTA 774 (14 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2215938
Tribunal:Kelvin Defranciscis
Date:14 January 2025

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 s 36(2)(a) of the Migration Act.

Statement made on 14 January 2025 at 9:00am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual man – beaten and ostracised by strict religious family and harassed and abused in community – short relationships and small social circle – recent serious relationship – detailed and compelling evidence – country information – civil and religious laws and family and social harassment, discrimination and violence – no effective protection, risk in all areas and alteration of behaviour not required – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (3)(c)(vi), (5), 5L, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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
BACKGROUND

The applicant was born in [Year], is a national of Malaysia, and first arrived in Australia [in] July 2019 as the holder of a visitor visa.
On 8 October 2019, the applicant applied for a protection visa (protection visa application). In short, the applicant’s claims for protection were based on the harm he would suffer as a homosexual, if he were required to return to Malaysia.
On 9 March 2022, the Department of Home Affairs (the Department) requested further information to help assess the applicant’s protection visa application. The Department posed a number of questions to the applicant about his sexuality and experiences so that it could be determined whether his claims about being a homosexual were “genuine”.
On 27 March 2022, the applicant responded in writing to the questions and provided additional evidence in the form of undated photographs (section 56 response).
On 8 August 2022, the Department requested that the applicant attend an interview on 30 August 2022. The applicant did not attend the scheduled interview.
On 5 October 2022, a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) (delegate’s decision). The delegate decided that due to the lack of substantiating detail or evidence, they were not satisfied that the applicant’s claims were genuine. Therefore, the delegate determined that the claims were not credible, and that consequently, the applicant was not a person in respect of whom Australia owed protection obligations as provided for in sections 36(2)(a) or 36(2)(aa) of the Act.
On 30 October 2022, the applicant applied for review of the delegate’s decision.
On 20 December 2024, the applicant appeared before the Tribunal at a hearing in order to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Malay and English languages, however, for the most part, the applicant did not require the assistance of the interpreter, as he was fluent in English and had no difficulty communicating with the Tribunal.
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[1].
[1] DFAT, Country Information Report: Malaysia (24 June 2024) (DFAT Report)
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds. The applicant does not claim to be a member of the same family unit of a person in respect of whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Receiving Country
The applicant provided a copy of his Malaysian passport and national identity card to the Department. The delegate determined that the applicant had provided sufficient evidence of their identity, which was consistent with a biometrics assessment. A further check of relevant systems revealed no information that raised concerns and so the delegate accepted the applicant’s identity as claimed.
At the hearing, the applicant spoke in detail about his experiences being raised by his family and living in Malaysia. There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that he has any right to enter and/or reside in any third country.
Therefore, based on the available evidence, the Tribunal is satisfied that:
·the applicant is a citizen of Malaysia;
·s 36(3) of the Act does not apply; and
·Malaysia is the receiving country.
The applicant’s claims
The applicant stated in his protection application and in oral evidence that he was born in Kuala Lumpur, but resided with his family at [Location], Selangor, until he completed his Sijil Pelajaran Malaysia (SPM) and moved out when he was approximately 18 years of age.
The applicant stated that he was born and raised as a Muslim in a “strict”, “religious” family. He also described the internal conflict he experienced and the constant external pressures he felt in being raised as a Muslim, and how as he grew older, he chose to avoid and not practice his religion due to, inter alia, the way in which it conflicted with his homosexuality. He has not practiced his religion since moving out of the family home or residing in Australia.
The applicant elaborated in detail at the hearing about the great difficulty he had living at his family home in the years leading up to him moving out. He spoke about being ostracised by his family for being “different” and “beaten” by them when they suspected and later learned that he was homosexual. He stated that the beatings were usually with objects around the home including branches or hose pipes. When asked about the seriousness of the injuries he reflected on not seeking treatment due to the fear and shame he would have to endure if having to report the reason for the injuries to third parties such as a hospital.
While he did not give specific examples from his early adolescence, he was able to recall how he began to develop feelings of an internal conflict when realising that he felt attraction towards, and preferred the company of males. He recalled the contrasting feeling of heterosexual interactions, such as being touched on the thigh by a girl and experiencing a negative or repulsive-type feeling.
He spoke about the fear and loneliness he constantly felt about being homosexual and having to hide that fact from his family and friends.
In the protection visa application, the applicant referred to being “chased out” of his family home. Consistent with this statement, the applicant advised in his section 56 response that after eventually admitting to his family that he was homosexual, he was “beaten by [his] father and [he] was kicked out of the house.”
At the hearing the applicant elaborated further, stating that while completing his SPM he had developed a relationship with a co-student named [Mr A]. The applicant noted the significance of this relationship in his journey of self-discovery, noting it was his first homosexual experience and relationship. He spoke about how [Mr A] was the person who he was able to talk to openly about himself. The applicant described the constant fear they both felt at being caught (in a relationship or discovered as homosexual) and the pain he felt when the relationship was eventually ended due to the pressure placed on [Mr A] by his family when they found out.
Consistent with both the protection visa application and the section 56 response, the applicant described how his relationship with [Mr A] had been discovered by [Mr A]’s family and was likely reported to the applicant’s family leading to an increase in the abuse with his father telling him that he was no longer welcome at the family home once he had finished his SPM.
One day shortly after his family discovered (or suspected) that he was homosexual, the applicant recalled arriving at his home to find that there was a religious department van parked out the front of his house. He stated that he ran away and had then slept the night in a nearby park. The Tribunal enquired about how he could be sure that it was a religious department van and that they were there in relation to him. The applicant stated that he could see the relevant name and markings on the outside of the van. He also formed the view that it was at his house in relation to him as he had spoken with a child neighbour whom he trusted and who had told him that they were looking for the applicant.
The applicant spoke about how eventually leaving home was a relief given the ongoing harassment and abuse by his family. He described leaving home “as soon as [he] got a salary”. The applicant stated that he has chosen to not remain in contact with his family since he moved out and this has extended to when he moved to Australia.
The applicant spent the next few years living with different friends while working in different jobs around [Location] and Kuala Lumpur. He described how he kept a small social circle, partly due to his introverted nature, but also due to his ongoing and ingrained fear about being harassed for being homosexual.
The applicant stated that there were times when the harassment was not as bad, typically, when people did not know he was gay. But when he was less careful and people found out, he experienced the abuse and harassment. The applicant gave examples whereby he or his close gay friends would experience harassment while in the community, such as at restaurants or while walking together. The applicant recalled being followed, cursed at, struck, slapped, and having his motorbike vandalised. He recalled a gay friend being “mugged”, which he said was due to being homosexual.
The applicant stated that he mostly socialised with a couple of friends from his workplace. He also entered into a two year relationship with a man named [Mr B], whom he now described as an “ex”.
The applicant described the fear, stress and ongoing depression that he experienced while living in Malaysia and so he began researching where he could relocate to in order to escape his situation. The applicant stated that he had considered Canada and Australia due to their recognition of rights for the LGBTI community. He chose Australia due to its closer proximity to Malaysia.
After spending the initial few weeks in the southern cities of Australia, the applicant moved to [Town] where he has lived for most of the time since his arrival. He has also regularly spent time in Darwin so that he can obtain seasonal [work].
The applicant stated that he initially resided in hostel-type accommodation with fellow [workers]. He soon made a connection with a person named “[Ms C]”, who remains his current landlord and someone whom he described as “knowing him best”. The applicant explained his initial anxiety about going into share accommodation and having to hide his sexuality, as he had become accustomed to in Malaysia. When reaching out to [Ms C], he disclosed to her that he would like to find accommodation/housemates that were sensitive to his vulnerabilities and sexuality. The applicant described his relief when [Ms C] was sensitive to those needs and found him share accommodation which also has fellow homosexual housemates.
The applicant stated that due to his introverted nature, he has limited his social network in Australia, but also noted that [Town] is a relatively small, rural community, which meant that there was less opportunities to socialise.
The applicant stated that he had only recently entered into a more serious relationship with a man named [Mr D]. The applicant explained how the relationship was slow to develop and was still in its infancy, mostly because [Mr D] was also a seasonal [worker] who did not permanently reside in [Town]. Nevertheless, the applicant described having a personal and sexual relationship with [Mr D].
The applicant was asked to describe what differences he had noticed between Malaysia and Australia, as a homosexual. The applicant described having a sense of freedom and relief at not having to hide his homosexuality. The applicant contrasted this with the constant fear, depression and abuse he suffered while living in Malaysia. He gave an example of openly holding hands with [Mr D] at the local supermarket.
The applicant was asked to specify what harm he thought he may be subjected to if he were to return to Malaysia. The applicant stated his view in his protection visa application, section 56 response and at the hearing that Malaysian law did not accept homosexuality. The applicant noted the previous abuse he had suffered while living in Malaysia and that he thought that it would resume if he returned. He noted a fear that his family, who he described as large and far-reaching, would find him and resume the abuse they had previously directed at him. He described a fear that he could not live without having to hide his sexuality. He described his fear that he would be taken away by the religious department and punished for being a homosexual. He was confident that he had already come to the attention of the religious department, even though they do not appear to have pursued him after he left the family home.
The applicant was asked whether he may be able to relocate to a different part of Malaysia in order to escape the persecution. The applicant reiterated how homosexuality is not accepted anywhere in Malaysia and that it was against his religion. In the protection visa application the applicant stated that he could be jailed.
The Tribunal asked the applicant whether he may be able to relocate to a safer part of the country where being a homosexual was not such a risk, for example, Kuala Lumpur. The applicant acknowledged that the persecution was likely more prevalent in the rural areas of Malaysia, which tended to be more conservative. However, he stated that having lived in the arguably more progressive places like Kuala Lumpur, he still had to carefully hide his sexuality and yet still suffered abuse there. He thought this would continue if he had to return to any part of Malaysia.
Country information
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has had regard to a range of country information, in particular, the most recent DFAT Report which provides information in relation to sexual orientation and gender identity in Malaysia.
Relevant extracts from the DFAT Report are as follows:
·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.[2]
·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.[3]
·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]
·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.[5]
·JAKIM (National Department of Islamic Development) and other state level religious authorities have occasionally conducted raids on LGBTQIA+ events. On 30 October 2022, RMP (Royal Malaysian Police) 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 non-government organisation, 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.[6]
·Authorities at federal and state level have promoted so-called ‘rehabilitation’ or ‘re-education’ programs aimed at changing sexual orientation or gender identity, also known as conversion therapy. Although these programs are primarily aimed at Muslims, Christians are also targeted. According to the US State Department, as of June 2021 at least 1,733 people had attended such programs. In-country sources reported that conversion programs were ‘voluntary’ in the sense that they were ‘not court-ordered,’ but in practice people were often coerced to attend by authorities and their communities.[7]
·LGBTQIA+ issues are considered taboo in Malaysia, particularly among Muslims.[8]
·The level and frequency of discrimination faced by members of the LGBTQIA+ community differs according to their sexual orientation and gender identity, socio-economic status, religion, geographic location, and degree of openness regarding their sexual orientation and gender identity.[9]
·DFAT assesses that members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence. LGBTQIA+ civil society organisations face a moderate risk of official discrimination in the form of legal charges and harassment by officials.[10]
[2] DFAT Report at [3.126].
[3] DFAT Report at [3.127].
[4] DFAT Report at [3.128].
[5] DFAT Report at [3.129].
[6] DFAT Report at [3.130].
[7] DFAT Report at [3.132].
[8] DFAT Report at [3.133].
[9] DFAT Report at [3.147].
[10] DFAT Report at [3.148].

Similar findings have been expressed by other bodies including the UK Home Office[11], where it noted that:
·Malaysia is a culturally and religiously conservative country. The constitution does not specifically protect against discrimination based on sexual orientation, gender identity and expression. Same-sex sexual acts are criminalised through the application of various offences under the penal code throughout Malaysia and under state Sharia laws, applicable to Muslims.[12]
·LGBI persons face harassment, arbitrary arrest and detention and police sometimes perpetrate and condone violence against individuals including in custody.[13]
·Persons who are likely to be able to demonstrate a real risk of treatment by state actors that amounts to persecution are: Muslim LGBI persons accused of same-sex sexual acts who are likely to be prosecuted under Sharia law.[14]
·Societal attitudes mean there is a negative view of same-sex relationships and a strong social taboo in relation to LGBTI issues among Muslims.[15]
·LGBTI persons face discrimination, stigma, threats, and violence; including sexual violence from family members which varies depending on their socioeconomic class, religion, place of residence, and how they present themselves.[16]
·In general, whilst LGBI persons face some societal discrimination this treatment is not sufficiently serious by its nature and/or repetition, or by an accumulation of various measures which is sufficiently severe to amount to persecution.[17]
·In general, the state is able but is not willing to offer effective protection.[18]
[11] UK Home Office Country Policy and Information Note – Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024.
[12] Ibid, page 4
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Ibid.
[17] Ibid.
[18] Ibid.
Notwithstanding the above, the UK Home Office also surmised that, in general, whilst LGBI persons face official and societal discrimination, treatment was not sufficiently serious by its nature and/or repetition, or by an accumulation of various measures which is sufficiently severe to amount to persecution and that, in general, in general it would be reasonable for a person to relocate Kuala Lumpur in order to escape persecution.[19]
[19] Ibid.
Human rights organisation ‘ILGA World’ also concluded in its report ‘Our identities under arrest: A global overview on the enforcement of laws criminalising consensual same-sex sexual acts between adults and diverse gender expressions’ that:
Discrimination and violence motivated by hate remains common in Malaysia, with some local activists arguing that the criminalisation of persons with diverse [Sexual Orientation and Gender Identity/Expression] and the negative morality rhetoric from government officials contributes to such incidents as a form of incitement. Vigilante mobs are reported to “arrest” suspected gay or trans persons and subject them to physical or sexual abuse rather than hand them over to the authorities. Several cases have been documented in which victims do not approach the police or press charges against their attackers for fear of revictimisation, arrest, or retribution.[20]
[20] ILGA World, ‘Our identities under arrest: A global overview on the enforcement of laws criminalising consensual same-sex sexual acts between adults and diverse gender expressions’ Geneva – November 2023, page 191.
Does the applicant satisfy the refugee criterion for protection?
Given the applicant’s claims regarding his sexuality were central to his protection visa application, the Tribunal carefully and thoroughly explored this with him at the hearing by asking many deeply personal, sensitive and difficult questions. Having carefully listened to and considered the applicant’s responses, the Tribunal concluded as follows.
The applicant’s oral evidence was frank, forthright, and compelling. It was entirely consistent with his protection visa application and his section 56 response, and he expanded on those written claims in comprehensive detail under questioning at the hearing. The applicant spoke with candour and emotion as he recalled the difficulty of being raised in a religious household where he was coming to understand that he was a homosexual and that this had significant repercussions for his life. Similarly, his evidence about having to hide his sexuality, living in fear, and facing a constant stream of rejection and abuse by his family and the community he lived in, were all readily able to be accepted based on the applicant’s compelling oral evidence.
The Tribunal carefully considered the fact that the applicant did not provide any corroborative or objective evidence about his homosexuality, which may have improved the veracity of his claims, for example, a statement from a third party such as a current or ex-partner. However, it is a matter for an applicant to determine what evidence they wish to provide in support of their claims. Further, the Tribunal is mindful of the both the difficulty and limitations that exist when a person is required to prove their own sexuality.
The Tribunal also notes that it is not required to accept uncritically any or all allegations made by an applicant. However, the Tribunal is not required to have rebutting evidence before it can find that a particular factual assertion by an applicant has not been established.[21] As is the usual case, each matter turns on its own facts and evidentiary matrix.
[21] Randhawa v MILGEA (1994) 52 FCR 437 at [451], per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547
In this case, such was the compelling nature of the applicant’s oral testimony, the Tribunal was satisfied that it could be accepted without further corroboration. Therefore, the Tribunal accepts the applicant’s evidence in its entirety, including that:
·     The applicant is a homosexual;
·     He comes from a deeply religious family;
·     He is a Muslim, albeit he does not presently practice;
·     He suffered severe anxiety, depression and fear while endeavouring to live in Malaysia as a homosexual; and
·     He experienced significant physical and verbal abuse in Malaysia from his family and the wider community due to being a homosexual.
With those key factual findings made, the Tribunal went on to consider whether the applicant has a well-founded fear of persecution if he returns to Malaysia.
As per the applicant’s evidence, which the Tribunal accepts, he holds a genuine fear of being persecuted if he were to return to Malaysia.
Whether the applicant’s fear of persecution is well-founded involves considering whether there is a real chance of serious harm if he were to return to Malaysia in the reasonably foreseeable future. The Tribunal notes the well-established principles that a “real chance” is one that is substantial, not remote or far-fetched and may be well below 50%, provided it is not based on mere speculation, conjecture, or surmise.[22]
[22] See for example Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Although not explicitly defined, section 5J(5) of the Act provides examples of serious harm, including:
(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.
As per the above-cited country information, the Tribunal accepts that there is a real chance the applicant will suffer serious harm from the Malaysian authorities and/or the Malaysian community if he returns, now or in the reasonably foreseeable future. That serious harm is likely to be in the form and nature to that which the applicant had previously experienced while living in Malaysia and includes significant physical harassment and significant physical ill-treatment of the applicant such as would constitute serious harm for the purposes of s 5J(5). The Tribunal finds that both the likelihood and gravity of the harm is further elevated by the applicant’s status as a Muslim, as per the country information above.
As per s 5J of the Act, the persecution must be for reasons of race, religion, nationality, membership of a particular social group or political opinion and that one of these reasons is the essential and significant reason for the feared harm.
Relevantly, s 5L provides that a person is to be treated as a member of a particular social group 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.
In accordance with ss 5J(1)(a) and 5L of the Act, the Tribunal finds that the persecution is based on the applicant’s membership of a particular social group, that being a homosexual, Muslim male from Malaysia. The Tribunal considers that this group is identifiable by the characteristics of gender, religious affiliation, and nationality. The shared characteristics have made the applicant distinguishable from society, as evidenced by country information, and the common characteristics are not a shared fear of persecution.
The shared characteristics are fundamental to the applicant’s identity, as evidenced by the fact that it has led to him forgoing his religious beliefs and accepting ostracization by his own family. The applicant’s homosexuality is fundamental to his identity and he cannot be expected to renounce it. Indeed, in the applicant’s protection visa application and in oral evidence at the hearing he stated “My nature is such and I can't change myself. The least I need is to have respect for myself”. As per s 5J(3)(c)(vi) the applicant is not required to alter or conceal his sexual orientation in order to avoid the real chance of persecution.
The Tribunal further finds that the essential and significant reason for the persecution is the applicant’s homosexuality as a Muslim if required to reside in Malaysia and that the persecution would involve systematic and discriminatory conduct.
The Tribunal notes the country information, in particular, the DFAT assessment that “LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination”, as well as the applicant’s own experiences, and concludes that the harm relates to all areas of Malaysia insofar as the real chance of persecution is not restricted to a particular area of Malaysia; and the risks faced by the applicant would not be mitigated by relocation to another area of Malaysia.
Furthermore, the Tribunal finds that there are not effective protection measures available to the applicant in Malaysia. Again, the country information supports that the feared harm is either inflicted by the state or its agents or that the state is complicit in the harm feared.
For the reasons given above, the Tribunal finds that the applicant is a refugee as defined in s 5H(1) of the Act and is therefore satisfied that he 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
…
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.
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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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