2218292 (Refugee) - [2024] ARTA 689

2218292 (REFUGEE) [2024] ARTA 689 (21 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2218292

Tribunal:General Member L Hill
Date:21 November 2024

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

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual – fear of detention – rejection by family – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA [189] HCA 62
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 November 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 3 April 2020. The delegate refused to grant the visa on the basis that the applicant was a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 12 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
Evidence before the Department
The applicant lodged his application for the protection visa with the Department of Home Affairs (the Department) on 3 April 2020. A copy of the biodata page of the applicant’s Malaysian passport accompanied the application.
In the application, the applicant claimed that he was unable to return to Malaysia because he is “Gay/Lesbian (LGBT)”. He stated the Malaysian government will act against him using the religious department and force him to undertake counselling and brainwash him. His family will also be subject to pressure, insults and bullying by other members of his community. The Malaysian government nor the public will support him because people like him are not recognised and do not have the right to be given any assistance and facilities. Finally, he is unable to move to any other areas as the situation remains the same for him throughout Malaysia.
On 11 August 2022, the Department sent a request for more information letter to the applicant. In summary, the applicant was invited to provide additional specific information regarding his claimed sexual orientation, and what harm he may suffer as a result. It was suggested that his response may include evidence of how he defines and expresses his sexual orientation in Malaysia and/or Australia, and, if he has concealed his sexual orientation, details of why. No further information was provided prior to the department’s decision being made.
The applicant was not interviewed by the delegate of the Minister.
On 15 November 2022, the delegate of the Minister decided to refuse to grant the applicant a protection visa under s 65 of the Act. The delegate did not accept the applicant’s claims regarding his sexual orientation. Consequently, the delegate found that the applicant was not a person in respect of whom Australia has protection obligations as provided under s 36(2)(a) or s 36(2(aa) of the Act.
Evidence before the Tribunal
The applicant lodged his application for review with the Tribunal on 12 December 2022. He provided the Tribunal with a copy of the delegate of the Minister’s decision dated 15 November 2022.
On 27 September 2024, the Tribunal emailed the applicant a ‘Pre-hearing information form’, advising that the matter was being prepared to be given to a Tribunal Member. On 3 October 2024, the applicant lodged a completed form. No further information regarding the applicant’s claim for protection were provided.
On 28 October 2024, the Tribunal invited the applicant to a hearing at the Brisbane Registry, scheduled for 12 November 2024. The applicant was asked to read and complete the enclosed ‘Response to hearing notice’ and return it to the Tribunal. On 8 November 2024, the applicant lodged a completed notice. The applicant confirmed that he would be attending the hearing and requested the assistance of an interpreter in the Malay and English languages.
On 12 November 2024, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal has considered the material before it, including the applicant’s evidence at the hearing. While it is not necessary to set out in full the applicant’s evidence at the hearing, the applicant’s core claims were discussed. A summary of the claims and evidence are set out below.
Applicant’s background
The applicant provided further details regarding his family composition, education, and employment history. He confirmed that he was born in Kelantan in Malaysia. He is one of [number] children, having [specified family members]. He stated he was a Muslim.
The applicant stated that his parents, [and specified relatives] continue to reside in the family home in Kelantan. [Details deleted.] [Some siblings] are not married and work in other areas of Malaysia. He remains in contact with his parents via WhatsApp.
The applicant completed secondary school in [specified year]. Between finishing school and his arrival in Australia he spent time at his family home and hung out with his friends. In Australia, he has been employed in a variety of roles including [at different employers] and on a farm. He has in the past transferred money to his family in Malaysia. The last time was approximately two years ago when his father asked.
Applicant’s protection claims
The Tribunal asked the applicant to explain why he feared returning to Malaysia. The applicant indicated that as a Muslim country, Malaysia does not accept people like him, that is men who have feelings for men. He fears if he returns to Malaysia he will be harmed by his cousin and family members, who are very religious; and his community who will report him to the religious authorities.
The applicant was asked when he first realised/suspected he was more attracted to the same sex. He indicated he was approximately 14 or 15 years old and boarding at his secondary school. He became close to his classmate. He stated it was hard to describe but he started to get feelings towards him. He was asked whether he ever spoke to anyone about his feelings. He stated that he didn’t dare mention his feelings as he feared he may be physically harmed.
The Tribunal asked the applicant if anyone in his family was aware of his feelings. He stated that when he was approximately [age] years old, his parents caught him watching gay pornography on his mobile phone. His parents were angry and told him he was not to leave the family home. He defied his parents request and went to the city. At that time, he had been talking to a man in [Country 1] whom he had met via Facebook. He decided to travel to [Country 1] to meet him.
The applicant stated in [2019], he applied for his passport and travelled to [Country 1] by plane, however, on arrival he was refused entry and had to return to Malaysia. He told the man in [Country 1] what had happened and in response the man blocked him. On his return to Malaysia, he didn’t return to family home and instead stayed with a childhood friend in Kuala Lumpur. It was this friend who assisted him to travel to Australia.
The Tribunal asked the applicant if had met anyone and established any close relationships since his arrival in Australia. The applicant stated he had met a man who was also from Malaysia. He was asked how they had met. He stated they were working together in [Town 1]. The man approached him and asked him if he would like to hang out. The man told him that he had watched him at work and noticed from the way he acted and joked that he may like boys. He spent time with this man, without others knowing. This man told him not to tell anyone as this man’s friends do not know that he is attracted to the same sex. Last year, the man moved to Melbourne. They have kept in contact, and he visited the man last year.
The applicant was asked how he reconciled his religion, as a Muslim, with his sexual orientation. The applicant stated he still considers himself to be a Muslim but that it was hard for him to change his feelings. He stated he had tried to change himself by being in a couple with a girl but after one month he could not continue. The Tribunal asked him when this had occurred. He stated that it was in 2022 when working on a farm in Australia. The girl was from [Country 2], and she had just finished her studies. After working together for approximately three months, she confessed to him that she liked him. He stated he tried to be a couple with her because he wanted to know how it felt. He ended the relationship as he had no feelings for her and just could not accept being like that.
The applicant also spoke about his concerns as a gay Muslim man returning to Malaysia. He stated that there were many Muslim people who are very religious in Malaysia. These people would not accept him and if caught, they would give him to the police. He stated that the religious people and the authorities do not accept LGBT people; they are considered illegal and if caught they could be fined or sent to jail.
The Tribunal asked the applicant about his relationship with his family and whether it had changed since the events in 2019. He stated [specified siblings] are very religious and cannot accept that he is gay. He has tried to message them, but they have told him that he needs to change himself. He said this made him feel very upset. He also stated prior to leaving Malaysia, his cousin contacted him and asked where he was and could they meet. His cousin is also away that he is gay. He stated that he is very scared of his cousin. His cousin is very religious and when they were younger, his cousin would beat and slap him.
COUNTRY INFORMATION
I have taken the following country information into account in making my decision.
In Department of Foreign Affair and Trade’s (DFAT) 2024 Country Information Report on Malaysia, under the heading ‘Sexual Orientation and Gender Identity’, ‘LGBTQIA+ ‘Conversion Therapy’ and ‘Gay men and men who have sex with men’ it is reported:[1]
[1] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Malaysia, 24 June 2024, p32.
Sexual Orientation and Gender Identity
3.126 As a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent. The Malaysian Penal Code defines ‘carnal intercourse against the order of nature’ as involving the introduction of the penis into another person’s anus or mouth (to the point of penetration). Oral heterosexual sex performed upon a man is also an offence, although DFAT is not aware of any prosecutions for this act; oral sex performed upon a woman is not an offence.
3.127 Across Malaysia there are 52 laws that criminalise different forms of LGBTQIA+ behaviour. Prosecutions have taken place under these laws, including under Section 377A/377B (Unnatural Offences) of the Penal Code, which includes penalties of whipping and up to 20 years in prison. Numerous state-level syariah-based laws prohibit same-sex relations and non-normative gender expression. In February 2021, a nine-judge panel of the Federal Court unanimously declared that a Selangor syariah law criminalising ‘unnatural sex’ was unconstitutional. This means that the federal law stands, but that State laws against same-sex sexual activity are invalid. In-country sources reported in 2022 that three states added new laws relating to LGBTQIA+ people based on syariah over the last five years.
3.128 While government stances on LGBTQIA+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and penal code offences. These laws prohibit males cross-dressing and/or presenting as women, and in some cases, females cross-dressing and/or presenting as men.
3.129 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.
3.130 JAKIM and other state level religious authorities have occasionally conducted raids on LGBTQIA+ events. On 30 October 2022, RMP and the Federal Territories Islamic Religious Department (JAWI) raided a Halloween event attended by members of the LGBTQIA+ community in Kuala Lumpur and arrested at least 20 people. Malaysian NGO Justice for Sisters reported in 2022 that 24 people were being investigated for offences including: being males posing as women; ‘encouraging vice’; and ‘indecent acts’ in a public place. State officials have conducted raids on private premises, sometimes accompanied by members of the RMP. Some in-country sources reported that authorities conducted such raids as a means of creating income through extortion and blackmail.
3.131 Members of the LGBTQIA+ community are typically prosecuted under state-based syariah legislation rather than federal law. In September 2018, a syariah court in Terengganu state sentenced two women to six strokes of the cane and a fine of MYR3,300 (AUD 1,100) after convicting them of having lesbian sex. The caning, carried out in a courtroom in front of 100 witnesses, was the first such sentence to be ordered in relation to a LGBTQIA+ case since 2010. While the investigation of such offences is reasonably common, and prosecutions have occurred, successful prosecutions are rare.
LGBTQIA+ ‘Conversion Therapy’
3.132 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. According to multiple sources, the Terengganu Government has run a ‘re-education boot camp’ or ‘behaviour corrective program’ in Besut for teenage males since 2010, where boys identified as ‘effeminate’ are sent for physical training and religious and motivational classes; while the Negeri Sembilan Religious Affairs Department held a two-day camp as part of the state’s Action Plan Against Social Ills of LGBT 2017-2021.
3.133 LGBTQIA+ issues are considered taboo in Malaysia, particularly among Muslims. Online abuse against people who raise LGBTQIA+ issues online is common. NGO Justice for Sisters reported in 2023 that doxxing of LGBTQIA+ people in the media and social media was also common.
3.134 Authorities regularly ban or otherwise restrict LGBTQIA+ material. In July 2023, British band ‘The 1975’ had its set in Kuala Lumpur’s Vibes Festival cut short after a same-sex kiss on stage between two band members. The Ministry of Communication subsequently cancelled the rest of the Vibes Festival and banned The 1975 from returning to Malaysia. SUHAKAM released a press statement condemning the ‘unacceptable behaviour’ by The 1975’s lead singer and noted that his behaviour ‘caused the event to be cancelled.’ The Malaysian Government has also banned international films with LGBTQIA+ elements, such as Thor: Love and Thunder and Lightyear.
Gay Men and Men Who Have Sex With Men
3.135 In-country sources reported that gay men and men who have sex with men sometimes experienced employment discrimination. Visibly effeminate gay men are reportedly more likely to suffer harassment and discrimination. Many jobs, including all public service jobs, are subject to compulsory health screening. If an employer finds out a gay man has HIV, his employment will be terminated (the HIV prevalence rate for gay men in Malaysia is around 20 per cent). In 2023, the Malaysian Ministry of Health identified men having sex with men as the main vector for HIV transmission, superseding intravenous needles. Pre-exposure prophylaxis (PreP) is available in public clinics, although there are campaigns against it due to its association with gay men.
3.136 In country sources reported in 2023 that an administrative circular was circulated in schools permitting caning of LGBTQIA+ students, framing it as a correctable ‘disorder’. In-country sources also reported cases of gay students being expelled from school for their sexuality. People stopped by police have sometimes had their phones checked for LGBTQIA+-related messages and dating apps such as Grindr. Such checks were reportedly particularly prevalent during COVID-19 pandemic lockdowns.
3.137 Domestic violence is also a serious problem within the gay community; where police are involved, gay men can face blackmail and extortion from police officers. Domestic violence legislation does not provide protection for same-sex couples.
In July 2024, the UK Home Office in its Country Policy and Information Note Malaysia: Sexual Orientation and Gender Identity or Expression under the heading ‘Risk from the state to LGBI persons’, it has been reported that in relation to Muslim LGBI persons:[2]
3.1.3 Muslim LGBI persons accused of same-sex sexual acts are likely to be prosecuted under Sharia law (which does not apply to non-Muslims) and would, when applied, by its nature be persecutory.
3.1.4 A person who can demonstrate they are likely to be forced to undergo conversion therapy practices will be at risk of persecution or serious harm.
3.1.5 Article 8 of the Constitution states that all persons are equal under the law and there should be no discrimination against citizens on the grounds of religion, race, descent, place of birth or gender but does not specifically prohibit discrimination on the basis of sexual orientation, gender identity and expression.
3.1.6 The penal code does not specifically refer to same-sex sexual activity but addresses ‘carnal intercourse against the order of nature’. This interpretation includes same-sex and opposite-sex sexual acts, with imprisonment of up to 20 years and/or whipping. Acts of ‘gross indecency’ committed in public or private carry sentences of imprisonment of up to 2 years.
3.1.7 Around 52 different Sharia laws exist across the 13 states and 3 federal territories, applicable only to Muslims (who constitute around 60 percent of Malaysia’s 34 million people). Many offences are vaguely defined. For example “liwat”, which has a different meaning depending on the state and includes prohibition of sexual conduct between men, anal sex or ‘unusual sexual intercourse’. Other offences criminalise “musahaqah” (sexual conduct between women) and sexual intercourse against the order of nature (applicable to both same-sex and opposite-sex sexual acts). Punishments can range from fines to the maximum of RM5,000, around £800, to 3 years imprisonment and caning.
…
3.1.14 Conversion therapy practices (CTPs), including rehabilitation, re-education programmes, and religious counselling, aimed at changing a person’s sexual orientation or gender identity are promoted by the government particularly in relation to Muslims and exist in several states. According to the Federal Islamic Affairs Department (JAKIM) between 2012 and June 2021 1,733 LGBT people had attended ‘Mukhayyam’ CTP programs. On 18 October 2023 the Minister for Religious Affairs reported to parliament the government had held 4 ‘Mukhayyam’ camps attended by 220 people. It is generally reported that attendance is promoted, encouraged, or incentivised through monetary payments although there are also some reports of forced attendance after arrest.
[2] United Kingdom Home Office, Country Policy and Information Note Malaysia: Sexual Orientation and Gender Identity or Expression, July 2024, pp6-8.

Under the heading ‘Protection’, it has been reported:[3]
4.1.1 In general, the state is able but is not willing to offer effective protection. However, each case must be considered on its facts.
4.1.2 State authorities have been responsible for harassment, discrimination, and violence, towards LGBTI persons with reports of physical and sexual assaults by police. However, there is also some evidence of the authorities prosecuting the perpetrators of violence against the LGBTI community, although in many instances the police do not consider hate crime as a motive.
4.1.3 Despite state actors insisting that the fundamental rights of LGBTI people are protected under the Federal Constitution, are treated equally, and have access to government services and assistance without discrimination, same[1]sex sexual activity remains illegal. LGBTI persons are arrested for offences related to their gender identity and/or expression, which particularly affect trans persons and Muslims. It would therefore be unreasonable to expect a person identifying as LGBTI to seek protection from the authorities.
CONSIDERATION OF CLAIMS AND EVIDENCE
[3] United Kingdom Home Office, Country Policy and Information Note Malaysia: Sexual Orientation and Gender Identity or Expression, July 2024, p14.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant meets the criteria for the grant of a protection visa. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Country of reference (and receiving country)
The applicant provided the department with a copy of the biodata page of his Malaysian passport. The Tribunal is satisfied that the applicant is a citizen of Malaysia.
There is no evidence before the Tribunal to suggest that the applicant has citizenship of any other country, or that he has a right to enter and/or reside in any third country. Based on the information before it, The Tribunal is satisfied that s 36(3) does not apply.
The Tribunal finds that the receiving country is Malaysia; and on this basis the applicant’s claims have been assessed against Malaysia.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal found the witness to be a credible and honest witness at the hearing. The applicant’s oral evidence at the hearing was detailed, convincing and presented in a manner indicative of a genuine lived experience. The Tribunal accepts the applicant’s evidence set out above and finds that the applicant identifies as a gay Muslim male.
The Tribunal has had regard to s 5J(6), which states that conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the decision maker that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee. Arising from the evidence presented, The Tribunal is satisfied that the applicant’s attraction to men existed prior to his arrival; and that since his arrival in Australia he has engaged in same-sex relationships in a private and cautious manner. In this respect, the Tribunal is satisfied that the applicant’s sexual expression and activities in Australia has been undertaken otherwise than for the purpose of strengthening his claims for protection. The Tribunal, therefore, is not required to disregard this conduct in assessing whether the applicant has a well-founded fear of persecution.
The applicant has claimed that on account of his sexuality he fears will be harmed by his religious family members including his cousin should he return to Malaysia. He also claimed that if religious people within his community came to know about his sexuality, he will be reported to the authorities. He is aware that the Malaysian authorities do not accept LGBT people and are considered illegal and if caught may be fined or sent to jail.
To establish if there is a well-founded fear of persecution, s 5J(1)(b) requires a finding whether there is a real chance that the person would be persecuted if returned to the receiving country, now or in the reasonably foreseeable future. To establish there is a well-founded fear of persecution there must be a real chance of it occurring.[4] A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though there is only a 10 per cent chance that they will be persecuted. In this case, the Tribunal has accepted that the applicant identifies as a gay Muslim male and is satisfied he will continue to do so on return to Malaysia. The Tribunal also accepts that the applicant’s parents, [siblings], and cousin are aware that he is gay; and finds that the chance that he may face harm from family members specifically his cousin to be more than remote. Moreover, the Tribunal considers the possibility of the applicant’s sexuality becoming known by other religious family members, or other members of the Malaysian community and/or the State authorities and him harmed on this basis to be likely and not remote, insubstantial, or far-fetched. Accordingly, the Tribunal finds there is a real chance of the applicant facing harm as a gay Muslim male on return to Malaysia, now or in the reasonably foreseeable future.
[4] Chan Yee Kin v MIEA [189] HCA 62.
Section 5J(4)(b) requires decision makers to consider whether the persecution involves serious harm. The DFAT and UK Home Office reports indicate that as a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. The impact is more pronounced for Malay-Muslim persons, as expressions of LGBTQI+ who express their identity constitute both syariah and penal code offences. State authorities have been responsible for harassment, discrimination, and violence, towards LGBTI persons with reports of physical and sexual assaults by police. The UK Home office specifically reports that a Muslim LGBI person accused of same-sex sexual acts is likely to be prosecuted under Sharia law (which does not apply to non-Muslims) and would, when applied, by its nature be persecutory. Given the applicant’s profile and the country information above, the Tribunal finds the applicant faces a real chance of significant physical harassment, societal violence and discrimination and may be charged with a crime under both syariah and federal laws (and subjected to whipping and imprisonment) on return to Malaysia. The Tribunal is satisfied that this would amount to serious harm of the kind contemplated by s 5J(5).
Having regard to s 5L, the Tribunal finds that gay Muslim men constitute a particular social group and is satisfied that the essential and significant reason for the serious harm being directed at the applicant from the community and the State authorities is the applicant’s membership of this group. Furthermore, on the country information above, the Tribunal is satisfied that the persecution involves systematic and discriminatory conduct (s 5J(4)(a) and (c)).
To the extent that the applicant faces harm from his family members including his cousin, and/or other members of the Malaysian community, country information indicates that in general, the State is able but is not willing to offer effective protection. It has been reported that State authorities have been responsible for harassment, discrimination, and violence, towards LGBTI persons with reports of physical and sexual assaults by police. Accordingly, the Tribunal finds that effective protection measures are not available to the applicant on return (s 5J(2) and s 5LA) and the real chance of persecution relates to all areas of Malaysia (s 5J(1)(c)).
Finally, section 5J(3) requires a decision maker to consider what reasonable steps a person could take to modify their behaviour to avoid the real chance of persecution. In this case, the Tribunal is satisfied that it would not be reasonable for the applicant to take steps to modify his behaviour, as to do so would require him to alter or conceal his sexual orientation. Moreover, it would be impermissible to require the applicant to take such steps under s 5J(3)(a), (b) or (c)(vi).
For the reasons given above, the Tribunal finds that the applicant has a well-founded fear of persecution should he return to Malaysia, now or in the reasonably foreseeable future.
Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
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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