2216570 (Refugee)
[2025] ARTA 2096
•29 July 2025
2216570 (REFUGEE) [2025] ARTA 2096 (29 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2216570
Tribunal:General Member E Rutherford
Date:29 July 2025
Place:Adelaide
Decision:The Tribunal affirms the decisions under review.
Statement made on 29 July 2025 at 9:19am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – lesbian – physical assault – sexual assault – forced marriage – threats of killing – applicant expelled from her village – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2CASES
FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106
MIAC v SZQRB [2013] FCAFC 33
SZEOH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1178Any 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 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first and third applicants are nationals of Malaysia who applied for the visas on 6 November 2018. The second applicant was later joined to the application after his birth. The delegate refused to grant the visas on 4 November 2022. The applicants applied to the Administrative Appeals Tribunal (the AAT) within the time limit allowed by the Act.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
This decision and statement of reasons is made by the Tribunal in review of the delegate’s decision. The issue in this case is whether the applicants are owed protection obligations as refugees, or pursuant to the complementary protection criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
The application for review includes the first named applicant, who is [an age]-year-old female (the first applicant). It also includes her two children, aged [specified ages].
Evidence before the Department
Protection visa application
In her protection visa application, the first applicant claimed to be a lesbian. She said that when she told her parents at age 18 that she was gay, she was beaten. She also said that one year prior to her protection visa application, she had been asked by her parents to return home, saying that she would become engaged to a man, but the man raped and beat her. She said that she had become pregnant from this encounter, leading to the birth of the third applicant. The first applicant feared being beaten by her parents and marginalised or threatened with being killed by the Malaysian community.
Supporting documents
The first applicant provided the Department with copies of her and the third applicant’s Malaysian passports.
While her application was under consideration, the second applicant was born. The first applicant provided a copy of his birth certificate to the Department.
Invitation to comment on adverse information
On 3 October 2022, the Department wrote to the first applicant inviting her to comment on information on Departmental systems which was inconsistent with her claims to be a lesbian. The information was that she had given birth to two children with the same father, and that she was currently residing with the father of her children.
The first applicant responded in writing to the Department’s correspondence. Her unsigned statement set out in full states:
I am a simple person who actually realised that I'm a bisexual. I realised that all of this happening to me when I started to admire a girl in my class when I was in high school. I was 17 years old at that time. It felt all good and my world full with colors everytime I saw her entering the class. I started to date girls since but what happened was I will always be rejected after I expressed my feelings towards them. I felt my life is sucks to date both men and woman but at the same time it felt good. Most people that knew me called me a lesbian. In 2016, I knew that everything was going to be totally changed when I told my parents that I'm a lesbian. I was forced to get married to a man that totally have no idea of who I am. After getting married, my husband get to know that I'm a lesbian and I end up being tortured, raped and beaten. He asked me to changed and become a real woman. I know I am a real woman that actually loves woman. But how can I change that. I don't even ask to be like this. It happened to me without control. I then decided to walk away from my husband and family after they told me that they cannot accept me as their daughter anymore. It is so hurt and I was totally in depression. I almost kill myself. While thinking of taking my own life I collapse. Luckily, I was at my friend's house and she found me on the floor fainted. I went to check doctor on why I collapse, and the doctor said I'm actually pregnant. I got myself really into depression more. I don't know what to do. My friend who always with me asked me to take a deep breath and think about the life in my own tummy. She was really nice and took care about me each and everyday. We fall in love to each other. I was happy with her until my parents get to know that I actually got a baby. They wanted to report me and my girlfriend to the authority. From there, me and my girlfriend decided to run away and fly to Australia. We are not sure of what will happened when we arrived in Australia but on that time, we just hope to find a good life living in Australia. [errors in original]
The Department did not interview the first applicant regarding her claims.
Summary of the delegate’s decision
The delegate formed the view that the first applicant’s claims were not supported by the documents provided and held residual doubts about the veracity of her claims, but decided to resolve their doubts in her favour. Accordingly, the delegate accepted that the first applicant was bisexual as claimed.
However, the delegate went on to consider the country information regarding the treatment of bisexual people in Malaysia, and found that there was no real chance of persecution of the first applicant on that basis. With respect to her claim of forced marriage, the delegate found that effective protection measures existed from the authorities of Malaysia.
Evidence before the Tribunal
Pre-hearing submissions
The Tribunal wrote to the first applicant prior to the review application being constituted, inviting her to provide additional information regarding her claims for protection.
The first applicant provided a further unsigned statement which gave a detailed history of two relationships. One relationship was with a female friend she had met in 2015, and the other with the father of her two children, who she met in 2016 and married in 2017. At the time of the statement, the first applicant stated that she and her husband were separated, and that she was in a long-distance relationship with her girlfriend. Further details from the content of this statement are set out in the findings below.
A directions hearing was held in order to clarify whether the first applicant intended to rely on the evidence of her girlfriend and husband. The first applicant indicated that she may wish to, and so the Tribunal requested that witness statements be provided in advance of the hearing.
The Tribunal received statements from the following three witnesses:
a.the first applicant’s sister, [Sister A]
b.the first applicant’s girlfriend, [Girlfriend A]
c.the first applicant’s separated husband, [Husband A].
In addition, the first applicant provided a letter dated 23 May 2018 along with a translation from the village head of her kampung (village).
Hearings
The first applicant appeared before the Tribunal on 5 May 2025, 30 June 2025 and 16 July 2025 to give evidence and present arguments. The Tribunal also received oral evidence from [Girlfriend A] and [Husband A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. Following the first hearing the first applicant requested that the same interpreter be used, and this request was accommodated in the subsequent hearings. Where relevant, the first applicant’s oral evidence at the hearings and that of her witnesses is referred to in the findings below.
Each of the witnesses has also had a review conducted by the Tribunal with respect of their own protection visa applications. They each consented to the Tribunal (as presently constituted) viewing the material contained on their review files. The Tribunal has read each of the decisions made by the Tribunal with respect of the two witnesses, but did not consider it necessary in light of the findings it was able to make based on the evidence given during the hearing and in their statements, to consider any other materials on those files. The reasons of the Tribunal with respect of the witnesses’ own protection claims are not binding on this Tribunal, and have not formed part of the reason for affirming the decision under review.
RELEVANT LAW
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
Receiving country
The first and third applicants have provided copies of their Malaysian passports in support of their claimed identities. I am satisfied that the first and third applicants are nationals of Malaysia.
The second applicant was born in Australia, and the first applicant gave evidence that his birth has not been registered with the Malaysian authorities. I accept this is the case.
The second applicant’s father is a Malaysian citizen, and I am satisfied that the third applicant is eligible to receive Malaysian citizenship after registration of his birth.[1] However, nationality is determined according to the citizenship actually held by an applicant, not one to which they are entitled to hold but have not yet applied for.[2] As the second applicant does not currently hold any nationality, I must determine what his country of former habitual residence is. Both of the second applicant’s parents are Malaysian citizens, and there is no other country identified to which he holds any connection. It is logical to determine that Malaysia is his country of former habitual residence for the purpose of my assessment.[3]
[1] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report: Malaysia (24 June 2024), [5.36].
[2] FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106, [64] (per Kerr, White and Charlesworth JJ).
[3] SZEOH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1178, [9] (per Nicholls FM).
There is no evidence to suggest that the applicants have citizenship of any other country, or that they have a right to enter and/or reside in any other country. Based on the information before me, I am satisfied that s 36(3) of the Act does not apply to the applicants. I am satisfied that Malaysia is the applicants’ receiving country, and I have assessed their claims against that country.
First applicant’s evidence
The oral evidence of the first applicant was consistent with the response that she gave to the Tribunal as part of its pre-constitution outreach. The chronology taken from the first applicant is complex, but worth setting out in detail to inform the basis of my reasons.
The first applicant said that she started to have feelings towards girls from primary school, and at secondary school she realised these were feelings of love and affection, but that she needed to set those feelings aside because it was not permitted in Malaysia.
She met [Girlfriend A] when they both worked at [Employer 1] in [District 1]. They both were accommodated on site. Feeling developed between them, and they expressed their love to one another. They considered themselves girlfriends and engaged in kissing and hugging, but their relationship was not sexual at that time. They socialised together but did not make their relationship known to any other people.
In 2016, the first applicant ended the relationship because of her concern that they would be discovered. She moved to Kota Kinabalu, but the two maintained a friendship. While in Kota Kinabalu, the first applicant met [Husband A] through a mutual friend. They formed a sexual relationship, and the first applicant fell pregnant. [Husband A] did not wish to take responsibility for the child because his family was very religious and he did not wish to tarnish their reputation.
The first applicant needed to return to her home village in October 2016. She reached out to [Girlfriend A] again, who offered to support the first applicant with raising the child. When the first applicant informed her family about this plan, they were angry, and forced her to look for [Husband A] and have him accept responsibility. She reached out to the mutual friend who had introduced them, and reconnected with him. She and [Girlfriend A] travelled to Kota Kinabalu, and [Husband A] agreed to marry the first applicant.
[Husband A] took the first applicant to meet his family, but they did not approve of the marriage. Despite their disapproval, [Husband A] and the first applicant were married. They lived with the first applicant’s family.
Things in the relationship were fine until approximately one month after the birth of the third applicant, when [Husband A] discovered that the first applicant had had a relationship previously with a female, and he left.
The first applicant reconnected with [Girlfriend A], and in February 2018, they resumed their relationship through messages. They met once in person in [Town 1] in April to celebrate their birthdays.
The first applicant continued to reside in her village until she received a letter saying that she must leave. A copy of this supposed letter and its translation was in evidence. The letter dated 23 May 2018 in full reads:
To whom it may concern
Subject: Official Statement Regarding the Removal of [the applicant] from [Village 1]
With a deep sense of responsibility, I, [Leader A], the Village Head of [Village 1], hereby issue this official statement regarding an issue that has caused unrest within our community.
After receiving multiple complaints and thoroughly considering the views and concerns of the villagers, the village leadership has collectively decided to request that [the applicant] vacate [Village 1] within thirty (30) days. This action is based on the grounds that she is leading a lifestyle that is contrary to the cultural norms and customs upheld by our community.
[Village 1] is a close-knit community that firmly adheres to traditional values and religious teachings. We view same-sex relationships as incompatible with the moral fabric of our society. It is important to stress that this decision was not made out of hatred or malice, but rather to safeguard the peace, harmony, and overall well-being of the villagers.
We respectfully request that the parties involved accept this decision in good faith and seek a more suitable environment in which to continue their lives. Furthermore, we urge all residents to uphold unity and refrain from engaging in any actions that may incite tension or conflict.
Thank you for your attention and cooperation.
Yours faithfully,
[Leader A]
Village Head
The first applicant surmised that the villagers came to know about her relationship with [Girlfriend A] through her mother telling one of her sisters, and the sister sharing the information with the villagers. She said that her parents knew that she was going to meet [Girlfriend A] in [Town 1] because she left the third applicant behind to be cared for by her sister, and from this, she thinks they must have deduced that she had resumed their relationship.
Around this time also, the first applicant said that her elder brother, who is a police officer, found out that she was bisexual and spat on her and beat her. She also mentioned that he has as recently as this year sent her text messages threatening to kill her, but that she deleted them because she did not like to see them.
The first applicant left the village as required following the thirty-day notice period and went to stay with her sister in Kota Kinabalu. [Girlfriend A] also resigned from her work and went to stay with the sister also. They went to see a travel agent who assisted them to apply for Electronic Travel Authority visas and they arrived together in Australia [in] July 2018.
The first applicant’s first cousin ([Cousin A]) was already living in Australia, and picked up the applicant and [Girlfriend A] and took them to live with her in [Town 2].
In [Cousin A’s] house, there were three bedrooms. According to the first applicant, [Cousin A] stayed in one bedroom, one was used for storage of her things, and she, [Girlfriend A] and the third applicant shared the third. [Cousin A] was aware of the same-sex relationship and was accepting of it. Both the first applicant and [Girlfriend A] gave evidence that their relationship became sexual once in Australia.
Approximately two weeks after her arrival in Australia, the first applicant said that she received a phone call from [Husband A]. He met [Cousin A] when they were both [working]. In their conversation, it arose that they both knew the first applicant, and [Cousin A] gave [Husband A] her phone number. He rang and asked to meet.
[Husband A] asked the first applicant about her plans, and she indicated that she would place the third applicant in childcare so that she and [Girlfriend A] could both work. [Husband A] did not want this for his child, and so he proposed that they all cohabitate so that the first applicant could focus on raising the third applicant. The applicant said that she discussed the suggestion with [Girlfriend A], and she agreed. Accordingly, they moved into a rental property together.
The living arrangements of the household were that [Husband A] occupied one room, and the first applicant, [Girlfriend A], and the third applicant shared another. On 28 July 2018, [Girlfriend A] attended a party and didn’t return home that evening. The first applicant and [Husband A] were watching television together, when he declared to the first applicant that he still loved her. They had intercourse, and one month later she realised that she was pregnant. She informed [Husband A] and [Girlfriend A]. [Girlfriend A] was upset, but ultimately accepted the first applicant’s apology and agreed to stay together. The living arrangements continued until early 2021.
At that time, [Girlfriend A] felt that the first applicant was spending too much time with her children and she was not receiving sufficient attention. She decided to relocate to NSW. The first applicant then resumed her marital relationship with [Husband A] a few months later. At the end of 2023, [Girlfriend A] contacted the first applicant again. The first applicant and [Husband A] separated in March 2024, and the first applicant claims to again be in a relationship with [Girlfriend A].
She said that since their resumption of their romantic relationship, they have met in person in [Town 3], and [Girlfriend A] has returned to [Town 2] for two visits. She said that the couple plans to become engaged in the future, however she has not taken any steps to obtain a divorce from [Husband A]. She said the reason the couple has not resumed cohabitation is that [Girlfriend A] likes her job, and they want to be more financially secure before she moves back to [Town 2].
She said that she has not yet told the children anything about her relationship with [Girlfriend A], though the children are close to her. She said that she felt it was not proper to tell them yet but will do when they are at a suitable age.
The couple have not discussed what they will do if either of them are unable to remain in Australia.
With respect to the second and third applicants, the first applicant fears that they will be bullied by other children when they learn that their mother is a bisexual, and that this will affect their mental health. I asked the first applicant if there was any reason to think the children would be harmed for reasons relating to their father’s claims for protection. The first applicant said that she thought that [Husband A] may have been involved in some religious protests. She said that no one had ever come to look for her or the third applicant in the past relating to this claim, and she said that she felt the harm was more towards [Husband A] than towards the children.
Witness – [Girlfriend A]
[Girlfriend A] provided a written statement dated 20 April 2025, and gave oral evidence at the hearing on 16 July 2025.
At the hearing, [Girlfriend A] confirmed that she had written the statement, and that its contents were true. She said that she had first written the statement in Malay, then used Google Translate to translate it into English. She then signed it, and provided it to the first applicant.
The statement corroborates the first applicant’s account of their shared history. With respect to their relationship now, the statement reads that she visits her annually and that she hopes one day they will be able to live together.
I asked the witness to expand on the couple’s plans in the future. She said that they plan to holiday in the snow in July 2025, and that they plan to get engaged. She said they will live together in the future and raise the children together. She said they haven’t decided on any timeline for these plans. She said they have opened a joint account for the first applicant to use on her expenses and for their future.
When asked whether she remains concerned that the first applicant will be too preoccupied with her children to give her attention as previously, she said that the children are no longer small, so she thinks the first applicant will have time for their relationship.
[Girlfriend A] said they have not discussed what they will do if either of them cannot stay in Australia. She said that she will always love the first applicant, but she would not return to Malaysia with her. If they were both in Malaysia, she said she would want to remain in the relationship, but would be unable to because Malaysia does not accept same-sex relationships. The first applicant also asked the witness whether she would remain committed to the relationship even if one of them were returned to Malaysia, and she responded in the affirmative.
Witness – [Husband A]
[Husband A] provided a written statement dated 26 April 2025 and gave oral evidence at the hearing on 16 July 2025.
At the hearing, [Husband A] confirmed that he had written the statement himself in Malay, and then used ChatGPT to translate it. He said he signed it [name], being his Christian name, and gave it to the first applicant.
When asked some questions about the contents of his statement as they related to the relationship between the first applicant and [Girlfriend A], the witness became highly emotional and struggled to speak on this topic. He said that he did not want to know about their problems, and that he was trying to cooperate only to the extent of finding money for the children and getting their visa. He said recalling things made him very sad and disappointed, and that his life and family had been destroyed. He requested the Tribunal call him back when he had recovered himself.
Upon resumption of the witness’ evidence, he was asked about his fears for his children upon their return to Malaysia. He said that they will be embarrassed by their friends because their mother is bisexual, and that his family also will not accept them. He said this will happen regardless of where they are in Malaysia, because she will not be accepted anywhere.
With respect to the witness’ own claims for protection, he said that the children were not involved in the religious protests that he was involved in. He said that in future, the people looking for him may search also for his children. The witness was unable to recall when he had been involved in the protest, but acknowledged that the first applicant stated that no one had come to look for them in the past. He said that he hoped they would not try to find his children.
[Husband A] said that the relationship between he and the first applicant ended because of [Girlfriend A], and that they always fought because of her.
He said that the children do not currently know about the relationship between [Girlfriend A] and the first applicant, and that he has advised the first applicant to wait until they are grown up.
With respect to the living arrangements that were in place from 2018 to 2021, the witness confirmed the evidence given by the first applicant. He said that during weekends he would bring the third applicant to sleep with him and that the third applicant never said anything about his mother sharing a bedroom with [Girlfriend A].
I then asked the witness what he had been referring to earlier when he said that he was devastated, and he said it was because he heard that the first applicant and [Girlfriend A] were having sex, and this was something that he could not accept. I put to him that this was in contrast with the evidence that they had all cohabitated for over two years, and to his written statement, which states that he respects the first applicant’s decision to embrace her sexuality and her relationship with [Girlfriend A]. The witness said that he is an ordinary person and did not feel comfortable with that, and that he has had enough in terms of his acceptance of the relationship. He just let them be and let them live together in one room.
Consideration
The Department resolved its concerns about the applicant’s evidence in her favour, and accepted that she was bisexual as claimed. I made it clear to the first applicant that I was not bound by that finding, and her sexuality remained an issue that I needed to determine. I said that there were a number of factors which cast doubts on the truthfulness of her claims, and I outlined each in turn, inviting her to comment on each. These are set out below.
Inconsistencies
As outlined above when detailing the written claims given by the first applicant in her protection visa and her response to the Department’s letter in October 2022, there have been significant changes in the first applicant’s evidence during the processing of her visa application and her review. Inconsistencies with respect to four key aspects of the first applicant’s evidence were put to her during the hearing and she was invited to comment on them.
First, her marital status was not declared in her protection visa application. In her response to the Department’s letter, she stated that she had been forced into marriage by her parents. To the Tribunal, she said that she had married her boyfriend after becoming pregnant.
Second, her sexuality was first described as gay or lesbian in the protection visa application. When the Department disclosed its knowledge that she was married and living with the father of her children, this claim changed to one of bisexuality.
Third, she first described having her first child through a rape. This became a claim to have been tortured, raped and beaten by the man she was forced to marry. To the Tribunal, she said that she had fallen pregnant to her boyfriend.
Fourth, she did not mention her husband in the beginning, and in her response to the Department she did not engage with or explain the issue of her husband being with her in Australia, and how they came to conceive their second child. Before the Tribunal, she explained that their second child was conceived [time] after her own arrival in Australia, and while she claims to have been in a relationship with her girlfriend.
I said to the first applicant that the number of inconsistencies might lead me to conclude that she had falsely claimed to be a lesbian, and then changed the claim into one of bisexuality when the Department found out that she was married.
The first applicant said that her protection visa application was written by someone who she asked to help her apply, but they wrote something that was not her story. They did not ask her about her marital status or the name of her female partner at the time. She said she learned of this story only after she received the first refusal (which I take to be the Department’s October 2022 letter), and then she sought help from a friend (J) to ‘reinstate her visa’. When J told her what he had written, she said that she protested, and said that it was not her story. J told her it was ok, and that she would have the chance to tell her story during the hearing.
She also said that J told her it would be ok just to change the story to bisexual. I said that the changes had gone further than that, and queried why she had not insisted on putting the correct information forward. She said that she tried to insist, but J said that she could not do that or she would not be able to get a visa to stay in Australia. I told her that I could deduce from this evidence that she had instructed J to assist her to fabricate a story that might still entitle her to a protection visa, but she denied this.
The first applicant said that the first time she had personally written down her claims was when she received the pre-constitution outreach form. She said that she wrote her claims and used Google Translate to translate them into English.
I find these explanations difficult to accept, in totality with my other concerns outlined below. The first applicant’s protection visa form contains the names and dates of birth of her parents and [number] siblings. There doesn’t appear to be any logical reason why a person collecting information from her would obtain this information in such detail from her, but not ask her whether she was married or in a relationship. It is also difficult to understand what possible motivation J might have had for not accurately writing down the first applicant’s story at the time of his assistance. It seems more likely to me that the first applicant asked J to put down an account that might be more likely to lead to the grant of a protection visa.
Letter from village head
I explained to the first applicant that there were two main concerns I had which caused doubts about the veracity of the letter purporting to be from the village head of her kampung.
First, I explained to the first applicant about the provision contained within s 367A of the Migration Act, which required that I make an adverse inference about the credibility of evidence which was not provided to the Department.
Second, I explained that I found it extremely difficult to believe that a village head would write a letter of that nature. I acknowledged that the societal views contained within the letter existed in Malaysia, but that it seemed unlikely that someone in that position would articulate the views in a letter. If they wished someone to leave, I said it seemed more likely that they would say so verbally. I also expressed doubt that such measure would be taken in the circumstances of her relationship with [Girlfriend A], which at that time involved only messaging, and one meeting for their birthdays. I said that [Girlfriend A] had never been to the village so it seemed an extreme measure to take.
The first applicant said that notice of this nature needed to be in writing because if it was only spoken, then the person could remain. Whereas in writing, it was final and the person could not do much. The first applicant also said that even though [Girlfriend A] had not been to the village, the relationship had been exposed, and so had the ability to influence the future generation if not dealt with. She said that what happened to her was the first time that anyone in the village had ever done something contraband to the traditional practice of the place. She also said that the reason she did not provide the letter at an earlier stage was because the person who helped her to complete the application form did not ask her to provide any evidence or attachment.
I asked her why she had not thought to produce it when the Department wrote to her and expressed doubts about her claim. She said that she had similarly not been told by J about documents she needed to provide. I asked her why it only occurred to her at the Tribunal stage, and she repeated that the person who assisted her earlier did not ask about these things.
I am satisfied that the first applicant does not have a reasonable explanation for not providing the letter from the village head at an earlier stage in the processing of her visa application. The first applicant claims to have been assisted with her application and the response to the Department’s letter, and not told that she should consider providing evidence in support of her claims. Yet, when apparently unassisted before the Tribunal hearing, she then thought to produce it. The letter from the Department in October 2022 specifically referenced the provision of documents, as has other correspondence in acknowledgement of the visa application. I find that, if the first applicant had truly received a letter which corroborated her same-sex preferences, and the persecution she claims to have received, she would have provided it at a much earlier opportunity.
I also find it implausible that a letter of this nature would have been issued at all, and especially in circumstances where the first applicant was merely engaging in a long-distance relationship by text messages only. I find it implausible that a village head would reduce views of this nature to writing and make a formal request for a person to leave the village. Doing so might lead to unwanted attention or publicity, depending on what the recipient chose to do with the correspondence. I do not accept that, by putting it in writing, the notice would have been thought to have greater finality, or that it was done because it was the first time that any person in the village had violated the village’s traditional practices. I do not accept the first applicant’s explanation of how the letter came to be produced, and I find that it has been fabricated to bolster her claims before the Tribunal. I have accordingly not placed any weight upon it as a corroborative piece of evidence.
Witness statements
I expressed concern to the first applicant that all three of the witness statements were written by the same person, who then went to the effort of changing the font and the layout to make them look different. I am of the view that they are written in similar language and style and with a high level of sophistication for witnesses who do not claim to be fluent in English. I indicated that I did not accept that the statement by [Girlfriend A] had been generated through Google Translate because it is an extremely rough translation tool and that translations generated through it rarely flow, and often contain mistakes or misunderstandings of a person’s true meaning. [Husband A] had claimed to use ChatGPT to translate his statement, which I accept may be more sophisticated than Google Translate, but can still generate a document that might be strangely put, or using words that are not commonly used. While the first applicant indicated that she no longer wished to call her sister to give evidence, and I indicated that I would place no weight on her statement, I expressed the view that it reads in the same way as the other two statements.
The first applicant claimed not to know how the witnesses wrote their statements or how they translated them. She said that she just received them, and sent them on to the Tribunal.
I do not accept that three separate statements, all apparently independently created (acknowledging that I do not have evidence about how the first applicant’s sister’s statement came to be created) would be as similar in these respects, when considering the nature of the language used and its sophistication. This is particularly so in the case of [Girlfriend A] and [Husband A], who both claim to have written the statement in Malay, and then provided a translation which had been generated through an application or artificial intelligence.
Instead, I find that the statements have been created by another, unknown party, to assist the first applicant with her claim. I have accordingly placed no weight on them as having any corroborative value for the credibility of the first applicant’s evidence.
Credibility/Implausibility of testimony
I indicated to the first applicant in the hearing that there were three aspects to her storyline that were difficult to believe, and might indicate to me that she was not telling the truth when recounting her past experiences.
First, I said that I found it difficult to believe the coincidence that she would have found herself in the same place and country as her husband, when they had not spoken for over one year. Further, that this might happen because her husband happened to work in the same place as her cousin, and within a week or two of her arrival in Australia. I indicated that I might conclude that she had followed him to Australia with the intention of resuming their relationship.
The first applicant responded by saying she had no idea how [Husband A] happened to be in the same state as her. As far as she was aware, he had previously been moving around different places, and that she only got to know this through [Cousin A]. This explanation does not account for the fact that they both chose to come to Australia within relatively close periods of time.
Second, I said that the first applicant’s evidence about her husband did not align with his demeanour when giving evidence. If her account (and his written statement) were correct, then I said he would have to be an extremely understanding, patient, and tolerant person, to live with her and her female partner, while they were engaging in a sexual relationship, for over two years. I said that he did not come across this way in his oral evidence. I said that I might conclude that it was more likely that she was in a marital relationship with him during that time, and that [Girlfriend A] was residing in the household as a housemate.
The first applicant responded by saying that her husband could accept them, but that as he had said, he was just an ordinary person, and that at times he could accept and other times he could not. She said that he could not accept the intimacy between them, but perhaps he had been able to do so at an earlier stage because of the children.
Lastly, I raised a number of concerns about the claimed nature of her relationship with [Girlfriend A]. There were four parts to the concerns that I raised:
a.the first applicant had described [Girlfriend A] as the great love of her life, and that she would never wish to be in another relationship with any other person in the future out of love for her. Yet, the two had been apart from one another while in a relationship for over one year, because they wanted to be in a better financial position before cohabitating.
b.[Girlfriend A’s] evidence that she was remaining in NSW because she is comfortable in her current job. Both of these points, I said, might indicate that the two were not in a genuine, committed relationship as claimed.
c.both the first applicant and [Girlfriend A] gave extremely vague evidence about their plans for the future. They both said they will get engaged and married, and yet the applicant has not investigated or commenced the process of divorcing [Husband A]. Neither of them was able to articulate a timeline of when they might resume cohabitation.
d.the inconsistency between the evidence that the first applicant and [Husband A] would not tell the children about the relationship between the first applicant and [Girlfriend A] until they were older, with evidence by [Girlfriend A] that she would raise the children with the first applicant. I also found it in contrast with evidence that they had been comfortable with the third applicant sharing a bedroom with the first applicant and [Girlfriend A] during his formative years. I said that I would have expected a person in the first applicant’s situation to have put more thought into how to raise their diverse sexuality with their children (noting that I had no expectation of how people in that situation would do it, and noting that I did not consider there to be any right or wrong way of approaching this situation).
The first applicant’s responses were as follows:
a.that when [Girlfriend A] was in [Town 2], her job situation was not stable, and she did not get the regularity of work that she now has. She said that she understood the witness’ evidence to be that she was comfortable with her boss now, but not that she intended to stay in the job permanently.
b.as per the response at a.
c.that she and [Girlfriend A] still have a lot of time to talk about their future plans. She said that their resumed relationship had only been about one year, and it would take a longer time for them to think about these things. She said that even though [Girlfriend A] says that she trusts her, and she hopes this to be the case, that in reality we can’t know what is in her mind or her heart.
d.that she wanted to respect the wishes of the children’s father, and so she had agreed not to tell the children at this time. She said that one day down the road she will certainly tell them and will not hide it. She said that in their current environment, she knows that being LGBT is widely accepted, and she will be able to tell them.
I do not place significant weight on the issue of telling the children about the relationship between the first applicant and [Girlfriend A], as I acknowledge that there would be a diverse range of views about this topic even within the LGBTQI+ community. However, I continue to hold doubts that [Husband A] would have been comfortable with his sons sharing a bedroom with his wife and her female lover for over two years.
I also continue to have serious doubts that the evidence that the first applicant is currently in a relationship with [Girlfriend A] is true. While I acknowledge that there has been corroborative evidence from [Girlfriend A] to support the applicant’s claims, her evidence has not overcome my doubts because of the factors outlined at paragraph 95 above.
I consider it far more likely in conjunction with my other concerns articulated in these reasons that the first applicant and [Girlfriend A] were friends who came to Australia together and shared accommodation with the first applicant’s husband. I find that they have chosen to try to support one another’s protection visa applications by claiming to be in a romantic and sexual relationship. I have not discounted [Girlfriend A’s] evidence because she has also been an applicant for a protection visa, but rather because the totality of the evidence before me leads me to conclude that theirs was a sort of joint enterprise which was intended to be mutually beneficial for them both. The only evidence which supports their being in a relationship is their oral evidence, and I have found significant flaws in it as outlined above.
100. The supporting evidence from [Husband A] is also that the first applicant and [Girlfriend A] are in, or have been previously, a romantic and sexual relationship. I have given consideration to this, especially in light of his emotional response to speaking of it during the hearing. However, [Husband A] is also intrinsically invested in the endeavour for the first applicant to have her claims accepted, because this would lead to the grant of visas to his two children. I cannot rule out the possibility that he was emotional during the hearing for other reasons, which may include the fact that his own claims have been rejected, or because of the breakdown of his own relationship with the first applicant. While I have certainly considered the possibility that he was being truthful in his account of his wife’s sexuality, and the fact that this, if true, would weigh significantly in her favour, ultimately I find that all the other doubts I have about the credibility of her claims outweighs any corroborative benefit of his evidence. I have placed no weight on the previously constituted Tribunal’s account of his evidence about his relationship with the first applicant and her protection claims, which are ambiguous, and which were given only in the context of an assessment of his protection claims, and not hers.
101. Each of the concerns referred to above all contribute to my finding that the first applicant is not bisexual or lesbian, because I find that the evidence she gave about her sexuality and her past experiences is not credible. I find that she was not expelled from her village, beaten, forced into a marriage and raped, or threatened to be killed by her brother, and that she does not face any harm of these things occurring to her in future. I find there is no real chance that she will face any harm upon her return to Malaysia.
102. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning is equally applicable to the refugee criterion in s 5J(1)(b) of the Act.
103. Having found that the first applicant does not face a real chance of serious harm, I also find that she does not face a real risk of significant harm.
Second and third applicants
104. The first applicant and [Husband A] (as the other applicants’ father) both expressed concern that the children would face bullying and discrimination as a result of their mother’s sexuality. As I have already made a finding that the first applicant is not bisexual or lesbian, and that she will face no harm as a result, it follows that I also find that the children will not face any harm for the same reasons.
105. The first applicant and [Husband A] were both asked if they had any other claims for the children arising from [Husband A’s] protection claims. While they both answered in the affirmative, I find their evidence to have been vague, and only given due to my prompting.
106. When asked to expand upon the fears she held for her children in regards to [Husband A’s] own protection claims, the first applicant said that she wasn’t sure if people who were looking for [Husband A] might come looking for his children. She said she felt that their interest was more in [Husband A] than the children, and that she didn’t think there would be much harassment towards them. She also gave evidence that no one had ever come to find her or the children previously.
107. When asked about his fears for his children with regard to his own protection claims, [Husband A] said that he thought the children would not be targeted because they had not been involved in the religious protests. While he raised the possibility that people might look for his family members, this seemed to be more of an afterthought for him. He expressed a hope that no one would come to look for them in the future.
108. I find that neither the first applicant nor [Husband A] hold any genuine fear on behalf of their children with respect to [Husband A’s] claim to have been involved in a religious protest. Accordingly, I have not considered it necessary to delve deeper into his claims or the materials that he has previously provided to the Tribunal on this subject.
109. I find that the second and third applicants do not have a well-founded fear of persecution in Malaysia for either their mother’s sexuality or their father’s previous involvement in any protests. There is no real chance of their facing harm for these or any other reasons upon return to Malaysia or in the reasonably foreseeable future.
110. For the same reasons, I find there is no real risk that they will face significant harm as a foreseeable and necessary consequence of their removal from Australia to Malaysia.
CONCLUSION
111. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.
112. There is no evidence that any of the applicants satisfy the criterion set out in s 36(2)(b) or (c).
DECISION
113. The Tribunal affirms the decisions not to grant the applicant protection visas.
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.
…
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.
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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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