2218707 (Refugee) - [2025] ARTA 1171

2218707 (Refugee) [2025] ARTA 1171 (19 May 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2218707
Tribunal:General Member G Sammon
Date:19 May 2025

Place:Sydney
Decision:The Tribunal affirms the decisions under review.

I, General Member G Sammon, certify that this is the Tribunal’s statement of decision and statement of reasons.
Statement made on 19 May 2025 at 3:21PM.
CATCHWORDS
REFUGEE – protection visa – Malaysia – membership of a particular social group – supporter of LGBT community – forced labour – initial application prepared by someone else – credibility concerns – identical claims with another case – unaware he had to provide further information – new evidence – activism in support of the LGBT community – three arrests after participating in public protests – detained, threatened and persecuted by police – fear of harm from police and Muslim group – denounce his advocacy or leave the country – five return visits – developed connections to bolster his claim – will put his family first – being a supporter of LGBT rights is not of the same inherent nature as a form of sexuality itself – ban on movement was lifted in 2014 – economic instability – reasonable steps to modify his public activist behaviour so as to avoid a real chance of persecution – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 56, 65, 338A, 367A, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Minister for Immigration and Citizenship v SZQOT (2012) 206 FCR 145
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 (the Delegate) on 13 December 2022 to refuse to grant the Applicants protection visas under s 65 of the Migration Act 1958 (Cth) ('the Migration Act' or 'the Act').
The Applicants who claim to be nationals of Malaysia, applied for the visas on 5 May 2022. The Delegate refused to grant the visas on the basis that the Applicants were not persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) on the basis of each of them being a ‘refugee’ as that term is defined in the Act[1] or eligible for ‘complementary protection' under s 36(2)(aa) of the Act.
[1] Section 5H.
In summary, the basis for the Applicants’ application for a protection visa, as stated in their application made in May 2022 was that the male Applicant, Mr [A] was a supporter of homosexuals in Malaysia and had supported legislation to legalise homosexuality in Malaysia. The female Applicant, Mrs [A] did not make her own claim for protection in the application for a protection visa, but instead her application is put on the basis that she was part of the same family unit as the male Applicant, in that she is married to the male Applicant.
The Applicants appeared before the Tribunal on 15 January, 12 March and 11 April 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Applicants made their application to the then Administrative Appeals Tribunal (AAT) on 19 December 2022, under the provisions of the Migration Act and the Administrative Appeals Tribunal Act 1975 (Cth). The application may continue to be heard by the Administrative Review Tribunal under transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
BACKGROUND
The Delegate accepted that the Applicants were citizens of Malaysia and that is verified by passports issued to them by Malaysia and provided both to the Delegate and the Tribunal. I agree with this aspect of the Delegate’s decision. The male Applicant’s passport provided to the Department of Home Affairs which administers the Act (the Department) was issued in [2019] and states that he was born in Malaysia in [year]. The female Applicant’s passport provided to the Department was issued in [2016] and states that she was born in Malaysia in [year].
The migration movement records for the Applicants provided by the Department to the Tribunal shows that they have travelled between Malaysia and Australia on several occasions between 2015 and 2019 the latter year of which was when they last travelled to Malaysia.
In the male Applicant elaborating on his claims for protection contained in the application for a protection visa, he said that in being a supporter of homosexuals in Malaysia, he had:
always make comment on [Social media 1] and other social media to support homosexuality legalisation in Malaysia.
In the application for a protection visa, the male Applicant also provided other reasons why he left Malaysia. The first of these was about what he described as being 'forced labour', in following terms:
In Malaysia, there are so many forced labor case and issue happening every day and no any department able to report and control on this matter. Import labor force from third level country, and work at lowest salary and forded labour.
Finally, on reasons why the male Applicant stated that he left Malaysia, he said that he lost hope in that country because of restrictions on freedom of speech.
On the other hand, in response to a question on the application for a protection visa as to whether the male Applicant experienced harm in Malaysia, he answered in the negative. He also answered in the negative, a question whether he thought he would be harmed or mistreated if he returned to Malaysia. The male Applicant did say, in response to a question on the form whether he tried to move to another part of Malaysia to seek safety, that he did not do so, and provided as details why he did not try to move within Malaysia, that the:
whole country was control by one political parties name UMNO. People who have embezzled tens of billions can be acquitted.
He also gave that as a reason why the authorities in Malaysia would not protect him if he moved back to Malaysia, although as stated above, he had not described experiencing harm in Malaysia and did not think that he would suffer harm if he returned to Malaysia.
In that part of the application for a protection visa headed 'Reasons for claiming protection’, in answer to a question whether the female Applicant was making her own claims for protection, she answered in the negative. However, the application form completed by the Applicants makes clear that the female Applicant was a member of the same family unit included in the application.
The protection visa application stated that if the Applicants had further information to support their protection claims, documents may be attached to the application. However, the Applicants attached to the application only their passports and no additional documents.
After the Applicants had made their application for a protection visa, in November 2022, the Department wrote to the male Applicant making an invitation, under s 56 of the Act, for the male Applicant to provide further information about his claims for a protection visa, focusing on his opposition to forced labour and his support of homosexuals and legalisation of homosexuality in Malaysia. The request also asked for information about whether he had faced threats in Malaysia due to his support of homosexuality in Malaysia.
As at the date of the Delegate’s decision, on 13 December 2022, the male Applicant had not provided additional information in support of his claims for a protection visa.
The Delegate’s decision
The Delegate’s decision summarised the claim for protection the Applicants made in their application for a protection visa. The Delegate noted that the Applicants had not provided any additional information in relation to their claim for a protection visa.
The Delegate made the decision based on the lack of detail in the Applicants’ claim, lack of evidence to support their claims, and the Applicants’ failure to provide further information about their claims. The Delegate was not satisfied that the Applicants’ claims were genuine. The decision does not describe the Applicants being invited to an interview with the Department. The Delegate did not consider any country information about Malaysia relevant to the Applicants’ claims for a protection visa.
As to the statutory criteria for the male Applicant being a 'refugee' having a 'well-founded fear of persecution’ in Malaysia, since the Delegate found that the male Applicant’s claims were not credible, the Delegate did not assess those claims further against s 5J of the Act for the purposes of the criteria contained in s 36(2)(a) of the Act. The Delegate was not satisfied that the male Applicant was a refugee as defined in s 5H(1) of the Act.
The Delegate also considered application of the statutory criteria for 'complementary protection' under s 36(2)(aa) of the Act. Given the Delegate’s findings of fact that the claims made by the male Applicant were not credible, the Delegate did not further assess those claims under the criteria contained in s 36(2)(aa). The Delegate therefore found that the male Applicant was not 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, and refused the grant of a protection visa.
Turning to the female Applicant, the Delegate considered that it was not necessary to determine whether the female Applicant was a member of the same family unit as the male Applicant. The reason was because the Delegate had refused a protection visa to the male Applicant. The female Applicant therefore did not satisfy the requirements of s 36(2)(b) or s 36(2)(c) of the Act because she was not a member of the same family unit of a person who holds a protection visa.
As the female Applicant had not raised her own claims for protection, the Delegate also found that she did not satisfy the requirements of s 36(2)(a) or s 36(2)(aa) of the Act. The Delegate therefore refused a protection visa to the female Applicant.
Evidence before the Tribunal
Pre-hearing submissions - March 2024 supplementary statement
The Applicants filed their application for review of the Delegate’s decision in the AAT on 19 December 2022, six days after the Delegate’s decision.
On 26 March 2024, the male Applicant sent to the AAT, a 'supplementary statement' for his protection claim. In that statement, he said he was detained, threatened and persecuted by Malaysian police, a matter not raised by him in his earlier application for a protection visa.
In the supplementary statement, the male Applicant described one of his relatives as a 'victim' of LGBT status who had suffered a critical life threat and social discrimination in a gender attack. The male Applicant appears to contend that the relative had attempted to commit suicide twice. I mention that point as background to the male Applicant’s advocacy in supporting the LGBT community that he refers to, although he does not contend that his status is an LGBT person. At the hearing, the male Applicant said that his relative was a cousin, and his support of legalisation for homosexuality in Malaysia is because of his family background, of a cousin who had been oppressed because they were of LGBT status.
In the March 2024 statement, the male Applicant goes on to say that as an advocate of the LGBT community in Malaysia, he has engaged in non-governmental organisations and advocacy groups, such as ‘[Advocacy group 1]’ and the ‘[Advocacy group 2]’ to promote greater awareness and acceptance of LGBT rights in Malaysia. He said that despite facing 'strong government resistance' he continued to join the campaign through various means like letter-writing and participating in the ‘[Advocacy group 1]’ festival.
The male Applicant said he was detained by police who moved in to stop the ‘[Advocacy group 1]’ forum in 2013 when he engaged in the campaign of supporting the legalisation of homosexuality in Malaysia. He said he was ill-treated and put into custody. He said he was interrogated and intimidated to 'shut up mouth or will be punished’. He said he was regarded as a blasphemer of the Muslim religion[2] and warned to give up his advocacy of the LGBT community.
[2] At the first hearing date, on 15 January 2025, the male Applicant said it was the 'Muslim party' who told him that he was an 'insulter of the Muslim religion'.
He then said he was targeted by police in the 2014 campaign of the [Advocacy group 1] festival and ‘secretly detained’ after the event. He said he was threatened to 'shut up my mouth' and warned for the second time. He said he was told by police if he was found a third time, he would be arrested and sentenced with 'serious punishment’. He said he was detained for a third time in the same year in another event associated with [Advocacy group 1] two months later.
On that occasion, the male Applicant said he was coerced to make a choice, either to denounce his advocating in support of the LGBT community or he would be arrested and sentenced with 'serious punishment' and to:
withdraw the organisation and pay the fine, or leave the country for good under the warranty of my family because I was not accepted, embraced or protected by this Muslim country.
The male Applicant said that he chose to leave for the sake of his family’s security and wellbeing.
The hearing on 15 January 2025
Both the male Applicant and the female Applicant appeared at the Tribunal’s hearing on 15 January 2025 and gave evidence on that day. They gave their evidence through the assistance of an interpreter in Mandarin and English.
Preparation of the application for a protection visa
For reasons which follow, the preparation of the Applicants’ application for a protection visa in this case had greater significance than other cases.
Although the Applicants’ application for a protection visa says that the Applicants did not receive assistance from an interpreter to complete the application or in completing the form for the application, at the hearing the male Applicant said he prepared the application himself, in the sense that he prepared the text of the application in Chinese and had it translated into English by someone else.
A description of further evidence given by the male Applicant as to the background of the application for protection visa is necessary in this case. He said had a friend whom he named in the hearing, and described as 'having the same problem', which he subsequently described as being a supporter of the LGBT community in Malaysia. He said that person is a lesbian. The male Applicant said his friend had come to Australia, and who suggested that given the male Applicant’s background in Malaysia, that he could make an application for a protection visa in Australia.[3] His lesbian friend had done that, and the friend gave the male Applicant the email address of a person who could translate the Applicants’ application for a protection visa from Chinese into English.
[3] The male Applicant said that this friend is now living in [Country 1].
At the hearing, the male Applicant gave the email address of the person he used to translate his Chinese into English. The email address of that person included the letters ‘[alphabet letters]’ and I will use those letters to describe the person who prepared the application for protections visa for the Applicants. The male Applicant said that he did not know whether [Mr B] was a migration agent. However, he said that he had never paid that person for anything done for the Applicants. He had never met that person and only communicated with [Mr B] by email. He said he could no longer get in touch with [Mr B] using the email address that he had for [Mr B] for preparation of the application for the protection visa.
By way of demonstration of the difference in email addresses used for the process of applying for a protection visa, processing of that application and the application to the Tribunal for review, he said that he had used his own email address for the supplementary statement which he provided to the then AAT, in March 2024.
A review of the completed application for a protection visa form dated 5 May 2022, reveals an email address for correspondence in processing the application which is different to the email address given on the form for the male Applicant’s own email address. The email address which the male Applicant used to provide the supplementary statement in March 2024 corresponds with the male Applicant’s own email address given on the application form and which the male Applicant said at the hearing is his own personal email address.
The first point of significance about who prepared the application for the protection visa, is that at an early stage of the hearing, the male Applicant said that there were errors in the application form of the following two kinds:
(a)content in the application form which the male Applicant did not provide to [Mr B], and is inaccurate; and
(b)information that he provided to [Mr B] about the trouble he had in Malaysia which was not included in the application form and which the male Applicant provided to the Tribunal in the supplementary statement in March 2024.[4]
[4] The male Applicant’s evidence was that he wrote the 2024 supplementary statement in Chinese and used an electronic interpreter aid to translate it into English. The 2024 supplement restatement filed with the then AAT is in English and has attached to it a document apparently in Chinese characters.
As to the first category, the male Applicant said all the references in the application form to the problem of forced labour in Malaysia and any involvement by the male Applicant in activism and advocating in support of forced labour was inserted by [Mr B] and not given by the male Applicant to [Mr B]. The male Applicant said although he supported the position of those subject to forced labour in Malaysia, he had not been an activist in support of forced labour and he made no claims for a protection visa in reliance on any advocacy or activism in support of those subject to forced labour.
He also said that he did not provide to [Mr B] the sentence about UMNO being the one political party that controlled Malaysia, or the text about people who have embezzled tens of billions can be acquitted, as contained in the application for the protection visa.[5]
[5] As set out earlier in these reasons at [11].
A further example of what the male Applicant said were errors in the application form for the protection visa is the response in the negative to the question on the form whether he had experienced harm in Malaysia because of his activism in support of the LGBT community. The male Applicant said that was an error made by [Mr B]. Instead, in his supplementary statement, and his oral evidence at the Tribunal hearing, he gave evidence of how he had experienced harm in Malaysia because of his activism. He also said that the part of the application form which asked whether the male Applicant thought he would be harmed or mistreated if he returned to Malaysia, where the answer was in the negative, was also an error by [Mr B].
On the second category, I will review the contents of that in conjunction with the male Applicant’s oral evidence further in these reasons.
A second point of significance about who prepared the application for the protection visa, is that in his evidence, the male Applicant said that he had not seen, and was not aware of, the Department's request for further information made in the Department's letter dated 22 November 2022. Review of that letter confirms that the email address used in the Department's letter was the email address listed as the email address for correspondence in the application for the protection visa ([Mr B’s] email address), rather than the male Applicant’s own personal email address. That explains why the Applicants did not provide further information in response to that request.

A further consequence of an email address apparently used by [Mr B] for processing of the application for a protection visa is that at the hearing, the male Applicant said that he was not aware of the Delegate’s decision refusing to grant the application for a protection visa, or even that an application had been made to the then AAT as a result of that decision until 2023 when the male Applicant made inquiries of the Department about obtaining a visa for the Applicant’s first child who had been born by that time.
Review of the application form for a review to the then AAT reveals that it was made using an online form, and therefore does not contain a signature. The email address for contact for the Applicants was yet a further email address, different to the male Applicant’s personal email address and even the email address used in the application for the protection visa. The application filed with the AAT, in response to a question of whether a representative was being appointed to act on behalf of the Applicants was answered in the negative.
The male Applicant said in his evidence that he was not kept informed by [Mr B] of the fate of his application for a protection visa. He said he sent emails to that person but did not receive a reply. He said he checked on his visa status on his mobile phone using the app 'My VEVO'. The applicant showed me the relevant text of that app on his mobile phone at the hearing and the app as relevant to the male Applicant simply says that he has a visa that is current that allows him to stay in Australia but does not say anything about his application for a protection visa.
It is therefore plausible that the Applicants were unaware of the invitation by the Department to provide further information about the grounds for the male Applicant’s application for a protection visa, and the Delegate’s decision and even the application to the then AAT until 2023 when the male Applicant made inquiries of the Department about the eligibility for a visa, for their first child, born in [year].
There is a further consequence of [Mr B] preparing the text of the application for a protection visa, significant for the purposes of this case. That is, the text of the male Applicant’s grounds for a protection visa in this case is exactly identical to the grounds for application for a protection visa in another application to the Tribunal for review of refusal to grant a protection visa that was constituted to me to hear and determine. The grounds are identical, even down to the spelling errors contained in the grounds for a protection visa, where the expression 'forded labour' is used, as an obvious spelling error, in the context, for what should be 'forced labour'.
The following text in the part of the application for protection visa form in each case asking for reasons why the applicant left their country of origin is exactly the same in each:
I always make comment on [Social media 1] and other social media to support homosexuality legalisation in Malaysia. I lose hope in this country, because restrict freedom of speech.
Also, in each application, in response to two questions whether the applicant tried to move to another part of the country to seek safety, and whether the applicant concerned thought they would be harmed or mistreated if they returned to their country of origin, the answer in each case was in the negative. In answer to questions asking for further details of why the applicant did not try to move to another part of the country and asking what the applicant thought would happen to them if they returned to the country, the same answers were given in each case, by identical text in answer to both questions in each application as follows:
Whole country was control by one political parties name UMNO. People who have embezzled tens of billions can be acquitted.
In my view, the exact repetition of these responses on the application form for a protection visa, by people who do not apparently know each other, and for whom the applications for protection visas are not stated on their face to be connected, raises a question about the credibility of the claims for a protection visa.
I raised with the male Applicant in the present case, the exact repetition of claims for a protection visa in the present Applicants’ case, being identical with another case before me for hearing and determination, although without providing the male Applicant in this case with the name of the other applicant.
The male Applicant replied that his claims for a protection visa was based on his own experiences, as outlined in the 2024 supplementary statement, and that [Mr B] did not accurately translate into English, the details of the male Applicant’s claims for a protection visa.
In favour of the male Applicant’s stated position, the application for a protection visa in the other case constituted to me for hearing and determination was made several months after the Applicants’ application for a protection visa. In other words, the claims made in the Applicants’ application for protection visa in this case were first in order of time. In my view, that makes it more likely that the repetition of grounds was done for the second case, in order of time, rather than the claims made by the Applicants for a protection visa in this case being a carbon copy of an earlier application for a protection visa, with all the questions that raises about credibility of the claims.
At this point I find that having regard to the other evidence given by the male Applicant as described below, and that the application for a protection visa made by the Applicants in this case preceded one made several months later by another applicant with identical grounds, that the application for the protection visa in the present Applicants’ case does not lack credibility on the basis that the grounds are an identical copy of grounds made in another application for a protection visa. However, that is not to say that I accept the merits of the present Applicants’ claim for a protection visa: only that it does not lack credibility solely because it is identical to grounds contained in another application for a protection visa.
2024 supplementary statement
In contrast, the male Applicant gave evidence at the hearing on 15 January 2025 that he had personally prepared the 2024 supplementary statement and gave evidence that the contents were correct. He said that the 2024 document contained details of his activism in Malaysia in support of the LGBT community, which was not contained in the application for a protection visa made on his behalf.
At the Tribunal hearing, the male Applicant did confirm something contained in his grounds for a protection visa in his application for the visa, that he made comments on [Social media 1] to support homosexuality legalisation in Malaysia. I asked him if he had brought to the hearing a printout of any posts he had sent to [Social media 1] in this regard, but he said that his [Social media 1] account had been blocked and shut down.
Similarly, in his 2024 document, the male Applicant said that he had continued to join the campaign in support of the LGBT community in Malaysia through letter-writing. I asked the Applicant if he had brought to the hearing a copy of any letters of that kind. However, he said that there had been a fire at his grandmother’s house where he had lived before coming to Australia, and now ‘everything [was] gone’.
In the 2024 supplementary statement, and in oral evidence given during the Tribunal hearing on 15 January 2025, the male Applicant described three episodes in 2013-2014 when he was detained by the police because of his participation in activism in support of the LGBT community in Malaysia.
He said he had participated in the ‘[Advocacy group 1]’ forum in 2013 which was a non- governmental organisation and advocacy group to promote greater awareness and acceptance of LGBT rights in Malaysia.[6] That festival was held in Kuala Lumpur and appears to have been conducted by way of marching in the streets. He said he was detained by police who moved to stop that forum in 2013.
[6] Paragraphs 3 and 6 of his 2024 supplementary statement.
The male Applicant said that he was taken to the police station and beaten up by the police there. He said he was released on the second day of detention because his grandmother bailed him out. The male Applicant understood that he was charged with the offence of protesting on the street, but nothing else happened about that after his grandmother paid bail and had him released from the police station.
The male Applicant said that at another protest, this time in 2014, again in Kuala Lumpur, he was again detained by the police and beaten up by them. He also said that he was beaten up by a Muslim group before the police detained him during the protest. He said that the police accused him of protesting illegally but no charges were brought against him which meant he had to go to court. He was told by the police that he should not participate in the protest because it is illegal. He said that he was again bailed out by his grandmother after this second detention by the police.
He said that the Muslim group beat him during the protest by using their hands and sticks to beat him in the arms and leg. He said when the police beat him in custody, they punched him with their fists in his abdomen and arms.
In his evidence before me, the male Applicant said after this second detention he was told by the police and the Muslim group that he should not participate in further protests. He said this happened when he was bailed out and confronted by the Muslim group at the main entrance of the police station. He said the Muslim group came to the police station to do that and the police let the Muslim group do that. He said that because what was said to him by the Muslim group was verbal and there was no physical aspect, the police could not do anything about the Muslim group. He said that the Muslim group just waited outside the police station for him.
He also said that the police gave him some ‘confidential warnings’ after release from this second detention, in that they told him that the Muslim group was targeting him and the police could not protect him and it would be best for him if he stopped protesting and stopped making trouble.
The male Applicant said that he was living with his grandmother at the time, in the town of [Town 1] in Selangor province, about 45 minutes drive from Kuala Lumpur. He said that the police took him from Kuala Lumpur to his hometown because he told the police that it was not convenient for his grandmother to travel to Kuala Lumpur.
He said that the Muslim group who issued the threat to him when he was released from detention in his hometown were outside the police station there. When I asked the male Applicant how the Muslim group knew to go from Kuala Lumpur where the protest was held, to his hometown, he said that the police had contacts with the Muslim group, or that the Muslim group may have been following him from Kuala Lumpur.
The male Applicant then said that he participated in a third [Advocacy group 1] protest in December 2014 and was again detained by the police. This third protest took place in [Town 2], which he said was a town near Kuala Lumpur. He said that because he had participated in the event for a third time, the police and the Muslim group, together on this occasion, told him to leave Malaysia within three months otherwise it will 'become a life-threatening situation' for him. He said that the warning took place in the [Town 2] police station and that the police let the Muslim group into the police station.
The male Applicant said on this third occasion, he was bailed out by his wife, because they had got married in 2014. Again, on this occasion, he was not charged with any offence that led to him having to go to court. He said that the police in [Town 2] knew that he had been arrested twice before at protests. When I asked him how the police knew this, he said that he believed that the police had a record of him in the police station.
The male Applicant said in his supplementary statement that 'I was regarded as the blasphemer of the Muslim religion’. At the hearing, I asked him who accused him of that, and he responded that it was the Muslim group (rather than the police).
In his 2024 supplementary statement, the male Applicant said that he was coerced after the third detention to make a choice, either to denounce his advocating in support [of the LGBT community] or he would be arrested and sentenced with 'serious punishment' and to withdraw from the organisation and 'pay the fine', or leave the country for good:
… under the warranty of my family because I was not accepted, embraced or protected by this Muslim country. Finally, I choose to leave for the sake of my family’s security and wellbeing.
When I asked the male Applicant if he had any photographs of his participation in the forums he could provide to the Tribunal, he said he did not. He said he did not officially join the LGBT organisations in Malaysia, but met with his gay friends about forthcoming events in support of the LGBT community in Malaysia.
He said he travelled to Australia with his wife in March 2015. He arrived in Australia on a travel visa and said that he obtained a student visa which did not expire until 2021. He said he studied in Australia earning a [Diploma 1] in 2021. He said he supported himself and his wife in Australia by working part-time as a [Occupation 1], and later working [in Occupation 2]. His application for protection visa was made in May 2022.
The male Applicant also said that his lesbian friend had participated in the same protests, and had also been detained by the police. He said that she travelled to Australia but he had not met up with her since he came to Australia. He said after being in Australia, he tried to find her but lost contact. The last contact he had with her was in 2018-2019 when they were both in Australia and when they were planning a trip to [Country 1]. He said that this friend told him about the idea of applying for a protection visa, between 2017-2018, but he said that at that time he was insisting on applying to the Australian Government for a visa using the skills he had acquired during his study in [Diploma 1].
He said that he attended a pre-visa application test to obtain a visa using his skills acquired during the [Diploma 1] course at a language institute. He said his spoken English was reasonable, but he could not pass the written component of the pre-test. He therefore did not subsequently apply for the relevant visa using his [Diploma 1] skills. He said that it was after he could not pass the written component of the pre-visa application test, that he decided to apply for a protection visa, in 2022.
The male Applicant said at the hearing that he had not kept in contact with his gay friends in Malaysia. He only kept in touch with his lesbian friend who also came to Australia, but is now living in [Country 1], and he has lost contact with her.
At the hearing, I asked the male Applicant if, since coming to Australia, he had joined any organisations which advocate for the LGBT community here. He said he had not, and the events held in support of the LGBT community in Australia in Sydney and Melbourne were too far away, and now he has [children]. He said in his current occupation, where he is a [Occupation 3] and has 30 to 40 people he manages, he has about 10 employees who are LGBT status.
Evidence from the female Applicant
The female Applicant also gave evidence at the first Tribunal hearing held on 15 January 2025. In response to a question from me about what she wanted to say about her husband’s application for a protection visa, she said at the moment she was very worried that her husbands’ previous life experience might affect their babies. She said that if they brought their babies back to Malaysia, they would get hurt. She said before her husband and her came to Australia, they were fearful of the Muslim group of people, and so she was worried that the Muslim group would come after the family again.
As to her knowledge of when her husband took up the activities in support of the LGBT community in Malaysia, she said that she learned that he was participating in these events in 2013-2014, and then when he came home with injuries. She said in December 2014 after they were married, she said she received a phone call from the police station and went to pick up her husband from the police station. She said that the police told her husband and her that he should not participate in the activities [of supporting the LGBT community] because they would force them out of the country.
I asked the female Applicant what caused her husband to take up an activist role in support of the LGBT community, and she said that she did not ask her husband much about that matter, but said that her husband has a relative who is LGBT. She said that the relative is a girl, but is now 'like a tomboy'. I asked the female Applicant if anything adverse had happened to that person because of their sexuality in Malaysia, and the female Applicant said that they would be 'discriminated' and mocked and that their sexuality will be illegal. She said that her husband's relative went to another country to escape harm in Malaysia, but they were not in touch with her now and do not know where she is.
The female Applicant confirmed that the male Applicant had been detained by the police a total of three times, and bailed out from detention by his grandmother on two occasions, and once by herself.
She said that she is in contact with her family still in Malaysia, although they do not tell her anything about the position of the LGBT community in Malaysia. She said that some of her husband’s family are activist supporters of the LGBT community in Malaysia, because some of them are in gay relationships. She said that those persons are discriminated against in that they are made fun of, and people will not spend time with them.
I asked the female Applicant if she thought the police would remember her husband if the family returned to Malaysia after living in Australia for so long. She responded that after they first arrived in Australia, her husband and her went to Malaysia to visit his grandmother about six months after first arriving in Australia in 2015. They stayed at his grandmother’s house at [Town 1]. She said that the police visited them and asked her husband and her to visit the police station to give the police signatures. She also said that they asked for 'under-table money’ which she agreed was to ask for a bribe. She said that her husband and her explained to the police that they were only in Malaysia to visit her husband's grandmother and only there for a short time. She said that the police were satisfied with that explanation, because his grandmother was ill.
She also said that prior to coming to Australia, people would come around to their house and cars would wait outside their house. She was therefore worried that if her family returned to Malaysia, the police would visit them and the 'Muslim party'[7] would make trouble for them.
[7] To use her description.
At the hearing, the male Applicant also provided to the Tribunal:
(a)medical records concerning the female Applicant from a family medical practice, dated 14 January 2025; and
(b)Queensland birth certificates for each of the Applicants’ [children].
The medical records record that the female Applicant was suffering post-partum depression and included a referral from the medical practice to a psychologist for six sessions of therapy.
I asked the female Applicant if she thought she was suffering from post-natal depression. She said that she was not really sure, but had been a little bit depressed after the birth of her second baby. However, she said she was very worried and fearful about their [babies] and having anxiety, her doctor suggested she see a psychology practice. She said she was worried about having to go back to Malaysia and what kind of life their children would have in Malaysia, and maybe that one day their children would lose their father.
What the male Applicant fears about returning to Malaysia

At the hearing on 13 January 2025, I asked the male Applicant what he feared about returning to Malaysia. He responded that after he was released from the police station, in 2015 he received constant visits from the Muslim group. The male Applicant told them that he was only coming to visit his grandmother and was leaving Malaysia in a few weeks. By that time, he had married and was living with his wife, not far from his grandmother’s house. He said he had 'no clue' how the Muslim group found out where he lived. He said that when the Muslim group came to his house, they were holding sticks over their heads.
He said he was afraid that the Muslim group would come to him and harm his [children]. He was afraid the Muslim group would not allow him to return to Malaysia. He said that whenever he returned to Malaysia, the police will require him to visit the police station, and the Muslim group would find out that he had returned to Malaysia. He said that the police were afraid that he would do the same thing again [attend protests for the [Advocacy group 1] forums] and he would need to explain that he was only visiting for a short period of time.
By way of final submissions, the male Applicant said that he and his wife had been living in Australia for 10 years now, and he is now the [Occupation 3] with a business with 30 to 40 people employed. He asked that the Tribunal to take into consideration the [children] of the family who were [born] in Australia. He also asked that the Tribunal take into account his wife's medical records.
He said that by receiving one salary himself, he is able to support his wife and children. He said if the family had to return to Malaysia, he would probably have to work two jobs and his children would be separated from him. He said that the Muslim group might come after him and because his children are so young, they will not be able to run and flee from them.
I asked the male Applicant whether, if he and his wife were returned to Malaysia, he would modify his activism in support of the LGBT community? He said that he would still participate in those activities. I asked him if he would cease those activist activities so as not to endanger his family? He said he would still keep protesting.
I asked the male Applicant that, since he and his wife had been living in Australia for almost 10 years, would the police be interested in him now? He said that is hard to say, but once they get off the plane, the police would come and find them. He said that he would 'definitely' participate in the same kind of protest activities again.
Further documents provided by the male Applicant after the first hearing date
At the hearing on 15 January 2025, the male Applicant expanded on the claims he had made in his supplementary statement dated September 2024, and clarified and corrected the content of the written application for protection visas. Given that, after the first hearing date on 15 January 2025, the Tribunal wrote to the male Applicant on 31 January 2025, to what was by then his correct personal email address, asking for further information about matters he had raised at the first hearing date. Those matters included a request for further information about:
(a)his evidence at the hearing that he had participated in events in Malaysia in support of legalisation of homosexuality and had posted messages of support for homosexuality in Malaysia on his [Social media 1] account, but that someone had closed his [Social media 1] account. The letter to him therefore asked for further details about his [Social media 1] account;
(b)whether he had a telephone with an in-built camera in Malaysia when he was participating in events in support of legalisation of homosexuality. If so, the Tribunal asked him to forward any photographs of those occasions;
(c)at the first hearing date, the male Applicant describing he and his wife returning to Malaysia on a single occasion in 2015. However, the movement record for the male Applicant provided to the Tribunal by the Department indicated that he had travelled back to Malaysia on five separate occasions. He was asked to explain the purpose of those visits.
The male Applicant responded to the Tribunal’s letter in his email dated 14 February 2025. Attached to that email, he provided the following documents:
(1)a covering statement in response to the questions posed in the Tribunal’s letter dated 31 January 2025 which also provided a description of the other documents attached to his email;
(2)correspondence between him and police in Malaysia in Kuala Lumpur and in particular, the head of the [Town 1] police station;
(3)several references from friends and co-workers of the male Applicant in Australia which also refer to his support to those of them who are LGBT;
(4)medical records of his grandmother, concerning a claim that one of the return journeys to Malaysia was to assist her with recovery from surgery;
(5)photographs of family members and a friend in Malaysia;
(6)photographs of the male Applicant and another man in places in Sydney of relevance to the LGBT community, apparently taken in February 2025;
(7)documents describing the male Applicant’s completion of a course in [Diploma 2] in Australia; and
(8)documents concerning purchase of land by the Applicants in Malaysia.
Second hearing date on 12 March 2025 - evidence on additional documents and responses
The documents provided by the male Applicant on 14 February 2025 raised further questions for consideration, since for the first time, he provided documentary evidence to support his claim for a protection visa. Accordingly, it was necessary for the Tribunal to schedule additional hearings, on 12 March and 11 April 2025.[8]
[8] It was not possible to complete hearing of the Applicants’ application on 12 March, since the interpreter allocated to the case on that day had other obligations to fulfil before the hearing could be completed on that day.
I will describe the details of the additional documents provided by the male Applicant, and evidence that both he and the female Applicant gave about them, by reference to the subject matter of those documents.
Covering statement dated 14 February 2025
The first matter covered by the male Applicant’s covering statement concerned a response to a question that the Tribunal posed to him in the letter dated 31 January 2025, on his [Social media 1] account in Malaysia being closed. Documents from his [Social media 1] account in Malaysia may have recorded his activism in support of the LGBTQ+ community there.
The covering statement said that his [Social media 1] account had not been deactivated but he had not logged in or used it since 2015. He said that the reason was that the Malaysian Muslim community had been closely monitoring his account and exerting pressure or reporting his LGBTQ+ related posts.

100. At the hearing on 12 March 2025, I asked the Applicant how he knew that the Malaysian Muslim community had been monitoring his account? He replied that was because the last time he was arrested in Malaysia, the police went through his [Social media 1] account. He said that he had not used [Social media 1], but still receives [messages] from other people. He thought that Muslims were amongst the people who had left messages from people that he did not know. He said that he thought that people were monitoring his account and identity although the messages he had received were just 'normal [messages]'.
101. As to why the male Applicant thought that the Muslim community was 'exerting pressure' or reporting his LGBT related posts, he said that was because the government in Malaysia had warned him to cancel the photographs on his [Social media 1] account. He thought that the Malaysian Government had got details about his [Social media 1] account, but were probably unable to login because they did not have his details.
102. The male Applicant said in his covering statement dated 14 February 2024 that during detention by the police, they forced him to delete all photographs related to LGBT support activities. At the hearing on 12 March 2025, he said that the last time he was at the police station in December 2014, they grabbed his phone and asked him to delete all photographs on it. He reiterated that he had not used his [Social media 1] account since 2015.
103. In his covering statement, the male Applicant said that the photographs were deleted locally in Malaysia so he was unable to provide relevant photographs of his support of the Malaysian LGBT community and the original backups were no longer retrievable. He continued that on that occasion, [in] December 2014, the police escorted him back to his hometown police station at [Town 1]. He said the police gave him two options:
1.If he remained in Malaysia, he had to completely sever ties with the LGBT community and refrain from participating in any related activities;
2.leave Malaysia immediately.

104. He said that he chose the second option on the spot and negotiated with the police to allow him three months to prepare for departure.
Preparation of the Applicants’ application for a protection

105. At the first hearing date, the male Applicant said that he had not paid the person who prepared the application for a protection visa. However, the letter to him from the Tribunal dated 31 January 2025 noted that the visa application charge had already been paid. The letter asked the male Applicant to advise whether he paid that charge direct to the Australian Government and if he had retained a receipt for it.
106. The male Applicant said in his covering statement that [Mr B] charged him AUD $[price range], claiming it was for 'document translation and Medicare application fees'. He said that at the end of 2023, he attempted to contact [Mr B] again to check on the progress of his visa application but discovered that the relevant [Social media 2] account had been deactivated.
107. At the hearing on 12 March 2025, I reminded the male Applicant that at the first hearing, he said that he had not paid a fee to [Mr B]. The male Applicant agreed with that, and said that he had forgotten, and when he went home to check and review his account, he realised that he had paid [Mr B] which he thought was for translation of documents and making a Medicare application on the Applicants’ behalf.
108. In the covering statement, the male Applicant said that [Mr B] was introduced to him by his friend '[Friend A]' in 2022. He said that [Friend A] was a female friend and a lesbian. He said that he met her at an LGBT event in Malaysia in 2014 but had lost contact. He said that [Friend A] had recommended [Mr B] to assist him with his visa application at that time. He said that he had never met [Mr B] in person and that they only communicated via [Social media 2]. He said that he was unaware whether [Mr B] was a registered [migration] agent.
109. He said that he was not aware of the specific materials submitted by [Mr B] but during the first Tribunal hearing, had discovered that the material submitted by [Mr B] contained discrepancies compared to the information he had provided. He said that when I had questioned him at the first hearing about these specific details in the application for protection visa submitted on his behalf, he immediately clarified that the contents did not match his actual experiences. He said that [Mr B] ‘may have used the same template materials for all applicants for convenience’. The male Applicant therefore asked the Tribunal to consider that the material submitted by [Mr B] contained errors and did not accurately reflect his actual experiences.
110. The Tribunal’s letter to the male Applicant dated 31 January 2025 noted that the Department had sent to [Mr B] a notification for the Applicants to attend the Department's Brisbane offices in 2022 to provide their personal identifiers. The letter then asked if [Mr B] told the male Applicant to attend at that meeting, because it was clear that the male Applicant did attend at that appointment according to a biometrics verification form provided by the Department to the Tribunal.
111. By way of response, the covering statement said that the male Applicant did receive an email describing the biometric collection arrangements, but he received that email from a different email address to that of [Mr B], which was from '[email address]’ signed as '[email details]'. The male Applicant said he mistook that for an official notice.
112. The male Applicant’s evidence at the hearing on 12 March 2025 was that his friend [Friend A] gave him the email address for [Mr B] in 2014, but he did not have to use that email address to apply for a protection visa until 2022. He said that he had not been in contact with [Friend A] since 2015. He said that she had his email address but he had not received any email or text from her since 2015. There is a discrepancy between that evidence, and evidence that the male Applicant gave at the first hearing date,[9] of not hearing from his lesbian friend, since the last contact with her, which was in 2018-2019, when they were planning a trip to [Country 1]. However, nothing in substantive issue in this matter turns on that discrepancy, and I do not hold that discrepancy to have an adverse effect on the Applicants’ claims.
[9] Described in paragraph [74] of these reasons.
113. In explanation for the delay between him obtaining the email address for [Mr B] in 2014, but not using it until 2022, the male Applicant said he hoped to use his training as a [Occupation 3] to get a visa. However, he said he did not obtain a visa as a [Occupation 3] so applied for a protection visa in 2022 which meant he had to use [Mr B] to apply for a protection visa.
114. In the covering letter describing the male Applicant’s relationship with [Friend A], he said that the photographs he had sent of his friend [Friend A] at the Applicants’ wedding confirmed his claim of participating in LGBT activities, and threats he faced were due to his 'sexual orientation and identity’. He replied that the photographs he had sent (showing his friend [Friend A] at his wedding) were from his wife's [Social media 1] account because photographs on his own [Social media 1] account were deleted at the police station. As to his sexual orientation and identity, the male Applicant said that him participating at the events in support of the LGBT community made the Malaysian Government believe that he was homosexual, but he said that he was not - only a supporter of it.
The Applicants return to Malaysia on multiple occasions and the correspondence between the male Applicant and the Malaysian police

115. The Tribunal’s letter to the male Applicant dated 31 January 2025 noted that at the first hearing, the male Applicant described his wife and himself returning to Malaysia on a single occasion, approximately six months after they had travelled to Australia in 2015. However, the letter informed the male Applicant that movement records for the Applicants as provided to the Tribunal by the Department recorded that the Applicants had travelled to Malaysia on more occasions than that, and particularly on five specifically dated occasions between 2016 and 2019. The letter therefore asked the male Applicant to describe the purpose of those trips despite the Applicants’ application for a protection visa and the 2024 supplementary statement stating that the Applicants were fearful of returning to Malaysia because of potential harassment by Muslim groups and the Malaysian Police.
116. In the male Applicant’s covering statement dated 14 February 2025, he agreed that the Applicants had undertaken those additional trips the date of, and purpose for, which he described, in summary, as follows:
1.[May] 2016-[June] 2016 - returned to visit his grandmother who was [Age] years old at the time. During that visit, the male Applicant said that he went to [a police station] to report his presence to prevent the police from harassing his family;
2.[November] 2016 - returned to Malaysia to attend his [brother's] wedding. He said that he reported to the [Town 1] police station and the police again warned him not to participate in LGBT activities and requested proof of his return ticket;
3.[February] 2018-[March] 2018 - returned to Malaysia to handle inheritance matters following his grandfather’s death. He said that during that period he also reported to [a police station] 'as per previous police requirements'. He attached relevant 'property transfer documents' to the covering statement;
4.[September] 2019 - returned to assist his grandmother with surgery and stayed with her for nearly [number of] weeks. The male Applicant said that during that time, he reported to [Town 1] police station 'as usual'. He also attached relevant medical documents for his grandmother to the covering statement.

117. By way of explanation of returning to Malaysia despite fear in going there, in the covering statement, the male Applicant said that each time was due to 'urgent family matters’. He stated that each return was met with:
strict police interrogation, requiring me to present my return ticket and being warned again not to participate in LGBTQ+ activities.

118. He also said he had obtained and attached the 'formal police warning letter’ issued to him. He attached to the covering statement a copy of correspondence between him and the Malaysian Police between [December] 2014 and [September] 2019. In that bundle, there is correspondence purporting to be from the Malaysian Police directed to the male Applicant on what purports to be Malaysian Police letterhead. Some, but not all of the correspondence is signed by the male Applicant and what purports to be a Malaysian police officer. Accompanying a copy of the correspondence are translations of those documents into English prepared and certified by a certified Malay translator.
119. The first of the correspondence in order of time in the bundle is two letters from the Malaysian Police directed to the male Applicant dated [December] 2014. That is the date when the male Applicant said he was detained in Malaysia for the third time.
120. One of those letters informs the male Applicant that the police had instructed him to delete all pictures ‘related to your participation in any unauthorised activities’. The instructions include that he must immediately delete all pictures that show his participation in any assembly, demonstration or unauthorised activity, including on social media, storage devices or any other platform. He was also directed not to share, distribute or republish the photos in any form. He was then required to submit evidence to the police to confirm that all relevant photos had been deleted as instructed. The letter continues that if he failed to comply with those conditions:
legal action may be taken against you, including fines, detention, or other disciplinary actions.

121. In his evidence to the Tribunal on 12 March 2025, the male Applicant said that the police gave him that document when he was in detention. They took his phone and requested him to log into his [Social media 1] account and the police then deleted all the photos in front of him before returning his phone to him. The male Applicant agreed, at the hearing on 12 March 2025, that the document does not say anything about his [Social media 1] account, but he reiterated that the police asked him to delete information from his account.
122. The second document, dated [December] 2014, is headed 'Confidentiality agreement'. It is not on Malaysian Police letterhead but in its form is a letter from the male Applicant to the Royal Malaysian Police at [Kuala Lumpur]. The copy of the original document has both what purports to be the male Applicant's signature, and a signature by the head of the [Town 1] police station.

123. The document states that in December 2014, the male Applicant was detained by the Malaysian police and asked to sign a confidentiality agreement with two substantive conditions. The first of these states that he was given a choice by the police to either 'no longer participate in any activities in Malaysia', or leave Malaysia.
124. Then, the document sets out 'conditions if I want to continue to stay in Malaysia’, which were that he was required to move to the 'designated location’,[10] inform the police of his place of work and report to the police every week without fail. The document concludes stating that the male Applicant understood that if he violated any of those terms:
[10] Which is not further described in the document.
agreed upon in this agreement, legal action may be taken against me by the Royal Malaysian Police.

125. In his evidence about the document at the hearing on 12 March 2025, the male Applicant said that he immediately chose to leave and agreed with the police to be given three months in which to do so. Given that on its face, the document is a letter from the male Applicant to the Malaysian Police, but that he claimed to be in detention at the time, I asked him who typed the document, and he responded that it was the police who gave it to him to sign.
126. He also said that the police required him to complete the document prior to being released. I asked him what was the 'designated location' the male Applicant was required to move to, if he chose to stay in Malaysia? He said that the police did not clarify that, but only that he had to make a choice between the options. I asked him what legal action they threatened him with, where the document states that if he violated any of those terms, legal action could be taken against him by the police. He said that the police did not specify what type of action they would take. Each time he returned to Malaysia, he said that the police would ask for his return ticket.
127. In the male Applicant’s covering statement, he said that the trips to return to Malaysia each time were due to 'urgent family matters'. I put to him that given his description of the trips, they were not all urgent. He replied that most of the time, the trips were urgent. He said that his grandmother is aged and when she complained about her health, he went back to Malaysia to take her to medical appointments. He said he has [sisters] in Malaysia, ‘but they are married and do not have much time’.
128. In chronological order, the next piece of correspondence between the male Applicant and the Malaysian Police was a letter dated [May] 2016 on police letterhead, to the male Applicant. The letter states that 'upon your return to Malaysia, you are required to immediately report to the nearest police station'. I asked him, given the way the letter was phrased, it appeared to contemplate him returning to Malaysia at some time in the near future after that letter. I asked him whether he contacted the police force first before travelling from Australia to Malaysia to ask the police about what he was required to do.
129. He said that he went to the police station voluntarily. He said he went there first before the police came to see him. He was told by the police that he needed to provide the letter to police if they stopped him in the street. He said that in 2019 however, he did not go to the police station - they came to see him. He said that they came to his home to question him why he had not reported to the police. He said he reached agreement with them 'privately’ and the next day went to the station.
130. The next trip which the Applicants undertook to Malaysia was in November 2016, when in the covering statement, the male Applicant said he returned to Malaysia to attend his [brother's] wedding. He provided to the Tribunal, a letter from him to the Malaysian Police dated [November] 2016. The translation of that letter states that he confirmed that upon return to Malaysia, he reported to the [Town 1] police station [in] November and signed that letter, with agreement on three points:
·he promised that between [date range] November 2016, he would not participate in any unauthorised gathering, demonstration or activity that may affect public order;
·he was returning to Malaysia solely to attend his [brother's] wedding and for no other purpose;
·he planned to leave Malaysia on [date] November 2016 and would not exceed that period.

131. At the hearing on 12 March 2025, I asked him if he voluntarily went to the [Town 1] police station to tell the police there that he had returned to Malaysia. He said he did, because he was worried that the police would come to his [brother's] wedding.
132. The covering statement dated February 2025 said that the next trip by the Applicants to Malaysia in February- March 2018, was to handle inheritance matters following the death of the male Applicant’s grandfather. He confirmed that at the hearing on 12 March 2025.
133. One of the documents provided by him to the Tribunal was a letter from the Malaysian Police to him, on letterhead, dated [February] 2018. At the third Tribunal hearing in this matter, on 11 April 2025, I said that the words used in that letter that 'upon your return to Malaysia, you are required to immediately report to the nearest police station', suggested that the police were sending that letter to him prior to his return to Malaysia and telling him what to do when he returned to Malaysia. I asked him if he prompted that response by contacting the Malaysian Police prior to leaving Australia? He replied that the police gave him that letter when he reported to the police station in Malaysia after returning to that country.
134. The male Applicant explained that the property was left to him and a paternal aunt in even shares by his grandfather many years ago. His aunt wanted the male Applicant to purchase her half and the purpose of the trip was to finalise the transaction to purchase that half. He now owns the property, but his grandmother lives in the property, rent-free.
135. The Applicants’ fourth trip back to Malaysia in September 2019 was stated by the male Applicant to assist his grandmother with surgery. For that trip, he provided the Tribunal with a letter from him addressed to the [police] in Kuala Lumpur, dated [September] 2019. The letter states that he confirmed that upon his return to Malaysia, he reported to the [Town 1] police station and had signed the letter stating three commitments:
·the purpose of the visit was solely to attend to his grandmother who was ill and to accompany her to obtain the necessary care;
·as to the duration of the stay, he would be in Malaysia for [a number of] weeks, planned to leave on [date] September 2019 and would not exceed the stated period;
·during the visit, he said he was guaranteed by a named man, as the 'Village Head', and the male Applicant promised to comply with all relevant laws in Malaysia.

The male Applicant stated that he understood and agreed that if he violated any of the agreements in the document, the police reserved the right to take 'appropriate legal action against me'.
136. At the hearing on 11 April 2025, I asked the male Applicant what brought about that document and whether he voluntarily presented at the [Town 1] police station to tell the police about his visit? He said that on that occasion, the police had asked him to report. He said the police came to where he was staying and asked why he did not report to them. He was staying where his grandmother lived and said that the police came to check if he had returned to Malaysia. He said that the police prepared that document.
137. Also at the hearing on 11 April 2025, I referred the male Applicant to the letter from the Malaysian Police dated [February] 2018, that he was prohibited from participating in any unauthorised assembly, demonstration or activity that may disrupt public order. I asked him if the concern of the police appeared to have been with the disruption of public order rather than being directed to campaigning on behalf of LGBT people, and asked him if there was some disruption to public order in the activities he had carried out in Malaysia when he was arrested up to, and including, 2014?
138. He responded that he was arrested during 2014, but he had never participated in an event that caused disruption to public order. I then asked the male Applicant about content [online] that referred to the '[Advocacy group 1]' movement that he had said he supported, and I asked whether he agreed with the [online] reports that its activities had been banned, but lifted in 2014? He agreed that the ban was lifted in 2014, but he said 'we still continued to hold this kind of event around the area of [location]'.
139. I also referred the male Applicant to [online] reports that the [Advocacy group 1] movement hosted talks, performances, screenings, workshops and forums, but no street marches or demonstrations. He responded that he believed that those activities were held on the national celebration day, of 31 August 2014, but the event he participated in was in November 2014. I asked him whether his arrests were following a street march or some other type of activity? He said that he was arrested in November and December 2014, and that the police considered that any group meeting over 20 people was a public assembly.
140. I asked the male Applicant, if the ban on the [Advocacy group 1] movement was lifted in 2014, whether he thought the police in Malaysia had been bluffing him by requiring him to report his movements in Malaysia? He responded that although the ban was lifted, he did not believe that it was totally lifted, because of Muslims in Malaysia opposing homosexuality, and the Muslim population is much greater than the others, and the Muslim population 'make the laws'.
Documents provided by the male Applicant on activities supporting the LGBT community in Australia

141. Attached to the male Applicant’s email dated February 2025, he provided several documents referring to his support of the LGBT community in Australia. One of those documents was a letter from a [Colleague A] dated 12 February 2025, addressed 'To whom it may concern'. He says that he is an Australian citizen, born and bred in Australia. He said that he came to know the male Applicant through work in 2015. He said of the male Applicant, that since arriving in Australia, he has continued to support LGBTQ rights and ‘participated in the Sydney Mardi Gras’.
142. I referred the male Applicant to evidence he had given at the first hearing date, in January 2025, that when I asked him whether he had continued his activism in Australia, he said that he had not, and that he had wanted to go to Sydney and Melbourne for events to support the LGBT community but had not because of the distance and he had [children]. I asked if he could explain [Colleague A’s] statement that he had participated in the Sydney Mardi Gras?
143. The male Applicant said that he became aware of those events and he would tell [Colleague A] that he had received email about them and he would like to go but could not because of the distance and his [children]. He said [Colleague A] probably thought that he was going to those events, but he did not tell [Colleague A] that he went to those events or not.
144. Also attached to the male Applicant’s email dated February 2025 were several photographs of the male Applicant and another man at places in Sydney of relevance to the LGBTQ+ community, such as a photograph of them at [a street] under a street sign depicting a rainbow and against a tableau of photographs on a building referencing events such as the Sydney Mardi Gras. I asked the male Applicant that since the relevant computer file for the photographs was dated February 2025, were the photographs only taken between January- February 2025?
145. He agreed that they were. He said that the other man in the photographs is his assistant [at work]. He said he went to Sydney to take those photographs in January 2025 and that the Sydney Mardi Gras have a flag-raising activity then. He said it was not the case that he went to Sydney to improve his case for a protection visa and that in January-February 2025, he had the time to go, and his wife said that she could take care of their children.
146. A further document attached to the male Applicant’s email dated February 2025 was a letter by [Colleague B] dated 12 February 2025, also addressed 'To whom it may concern'. She said that she was a Malaysian herself, and a permanent resident of Australia. She said she met the male Applicant in 2015 while working and they have known each other for many years. She said that since moving to Australia, the male Applicant had continued his advocacy for LGBTQ rights and he had 'participated in the Sydney Mardi Gras … demonstrating his unwavering support for the community'.
147. I asked the male Applicant if [Colleague B] only knew those things if he had told her? He said that her and [Colleague A] were a couple and the same as with [Colleague A], that he had only told them that he wished to participate in Mardi Gras but did not tell the two of them that he had[11] participated in Mardi Gras. He said he had told them that he would participate in events this year. He also said that he would occasionally ask [Colleague A] and [Colleague B] to come for a drink at [Suburb 1] [in Brisbane] at an LGBTQ bar, but if they could not attend, they have a barbecue in a park. He was not sure of the name of the bar. He said a gay employee had told him about the bar.
[11] Added emphasis.
148. I asked the male Applicant if he had only made plans to go to the Sydney Mardi Gras in 2025, after the first Tribunal hearing date? He said that even without the Tribunal hearing, he would still have made plans to go to the 2025 Mardi Gras and made plans to go with one of his employees.[12] He said he made plans with that person to go to the 2025 Mardi Gras in around September 2024 and he could do so because now he was [in a higher position] at [his workplace], he can make plans to get time off.
[12] Who he said was a bisexual individual according to a ‘letter of support’ provided by that person, dated 10 February 2025 and whose initials are [initials]. That document was also provided to the Tribunal with the Applicant’s email dated February 2025.
149. A further statement provided by the male Applicant with his email dated February 2025, was a document headed 'Witness statement' dated 11 February 2025, by a male person who identifies himself as homosexual. I will only identify that person in these reasons by his [initials]. In that statement, [Friend B] said he participated in an LGBTQ+ event together with the male Applicant in 2014. He said that he was detained with the male Applicant by the Malaysian Police.
150. [Friend B] continued that the incident had a significant impact on his personal life. He said he ultimately decided to remain in Malaysia and did not accompany the male Applicant to Australia. He said that was because his partner was running a business in Malaysia, and was unable to leave. He said that as a result, he chose to give up his public support for LGBTQ+ rights, but had continued to support the community privately. He said that he had not been in contact with the male Applicant for nearly ten years, but recently learned from the male Applicant’s sister that he requires a written witness statement to verify the events that took place in 2014.
151. At the hearing on 11 April 2025, the male Applicant said that the event referred to in the statement where both [Friend B] and the male Applicant were detained was the event that occurred [in] December 2014. Referring to the decision by [Friend B] that he chose to give up his public support for LGBTQ+ rights, the male Applicant said that [Friend B] was given the same choice as the male Applicant was given, to leave Malaysia, or no longer participate in those activities in Malaysia, and that he chose to stay in Malaysia.
152. As to what [Friend B] said in his statement about giving up public support for LGBTQ+ rights, the male Applicant said that he understood that [Friend B] silently supports LGBTQ rights by donation. I asked the male Applicant to comment on [Friend B] not reporting being the subject of any harassment since 2014, even though [Friend B] says that he is a homosexual man with a partner. The male Applicant said that when [Friend B] is out with his partner, they do not hold hands. He said that the police are continuing to monitor whether [Friend B] attends those events or not. He said he thought that if [Friend B] attended a public gathering of more than 20 people, the police would arrest him.
153. From that statement, I asked the male Applicant whether he thought that what the police were trying to stop was the public support for the LGBTQ community, rather than homosexuality itself? The male Applicant said that he could not tell which one, and that what had happened is that because 'we were previously arrested, the police will pay more attention to us'.
154. On 7 March 2025, the male Applicant provided more documents to the Tribunal describing his participation in the Sydney Mardi Gras on 1 March 2025, by photographs showing himself in the parade with his [work assistant]. He also provided documents indicating that he had donated some money to [an LGBT charity]. On 17 March 2025, the male Applicant sent to the Tribunal a copy of emails concerning [an LGBT organisation’s] Annual General Meeting about the male Applicant using a proxy for that Annual General Meeting. That chain of correspondence commenced on 12 March 2025 and the first email in the chain is an email from the Secretary [of the organisation] advising of the Annual General Meeting.
155. At the hearing on 11 April 2025, I asked the male Applicant whether, in the seven years between 2015 when he had arrived in Australia, and 2022,[13] he had participated in any advocacy groups for LGBT rights in Malaysia? He said he had not because the police had made clear that he could not participate in any of those events in Malaysia because if he did, the police would beat him up.
[13] When the Applicants lodged their application for a protection visa to the Department.
156. I asked him whether he had participated in any advocacy groups for LGBT rights when in Australia, although as he told me at the first hearing, he did so privately with his employees. He said 'no, not really' and that previously he was a student and needed to work to support his family so he only attended local events in bars. He confirmed that he had only been to the Sydney Mardi Gras in 2025. He also confirmed that he went to Sydney in February 2025 to get some photographs of relevance to the gay community.
157. I also asked the male Applicant that although he had not been active in supporting the LGBTQ+ community in Malaysia since December 2014, he said in earlier evidence he would take up that activism in Malaysia should he return? He said ‘Yes, for sure’, because when he was in Malaysia he had more time and space but in Australia it would take him half a day. In the context, I take that to mean half a day to travel between Brisbane, and Sydney or Melbourne.
158. I asked him whether he could attend LGBT events in Malaysia, but not participate in any public assemblies? He responded that if he goes back to Malaysia, he could only go to events such as an art gallery but could not attend events of more than 20 people, because 'we can't sit together as a big group'. He said that one of the occasions when he was arrested in Malaysia occurred when 'we sat down in a large group in Kuala Lumpur at [location] before being arrested’. He said the police did not beat him as a result of those events, but the police considered that as an assembly, so police 'got us to get into a truck and took us all to the police station'.

197. A further demonstration of how the male Applicant put his family first, before his activism in support of the LGBTQ+ community, was that he did not carry out any activism of that kind in Australia between arrival in Australia in 2015, until 2025, apart from support for those employees he manages who are LGBTQ+ in terms of sexual status. In his evidence, he said that he did not take up that activism because of his need to work to support his family, and because of his young children. However, as I have found above, there was nothing because of the female Applicant being pregnant that would have prevented him from being involved in supporting the LGBTQ+ community in Australia or Malaysia from 2015 until [the] female Applicant would have become pregnant with their first child.
198. Further, the male Applicant gained his qualification [in Diploma 2] in 2022. After that time, he said he had more availability to participate in events in support of the LGBTQ+ community in Australia. However, his evidence is that he did not participate in events or organisations of that kind, apart from support to the LGBTQ+ employees whom he manages. Between [year] and [year] was when his wife was pregnant with their children, or they were babies, which was why he described not becoming more involved in support of the LGBTQ+ community, further demonstrating his primary commitment to his family over support to the LGBTQ+ community.
199. I therefore find that if the male Applicant was to return to Malaysia now, or in the reasonably foreseeable future, he would not carry out public activism in support of the LGBTQ+ community in Malaysia that would involve risk to his family by arrest at public demonstrations. That would not prevent him from carrying out other forms of support, such as donation to LGBTQ+ support organisations, or from continuing with the letter writing that he undertook before coming to Australia in 2015, but gave no evidence that he has since resumed.
Reasonable steps on the male Applicant modifying his behaviour under s 5J(3)
200. Further and separate to my finding that the male Applicant would not undertake activism in Malaysia that would lead to his arrest there, I find that it would not be difficult or unreasonable for the male Applicant to cease his public activist activities, in the form of attending public demonstrations or protests, with the risk of arrest, if he was to return to Malaysia, for the purposes of s 5J(3) of the Act. I find that taking reasonable steps to modify his public activist behaviour so as to avoid a real chance of persecution in Malaysia would not fall within any of the exceptions contained in s 5J(3)(a)-(c) applying to him.
201. He does not say that he himself is homosexual, and so there is nothing innate or an immutable characteristic[18] in him that would require him to desist from a form of sexuality as there would be with someone who was of LGBTQ+ sexuality under s 5J(3)(c)(vi) of the Act. His claim to be a supporter of LGBTQ+ rights is not of the same inherent nature as a form of sexuality itself.
[18] To use the language of s 5J(3)(b) of the Act.
202. Moreover, there is nothing in s 5J(3) that means any particular form of activism is an inherent kind which in the circumstances of the male Applicant is, a form of behaviour which he could take reasonable steps to modify so as to avoid a real chance of persecution in Malaysia. The history of his connection with the LGBTQ+ community in Malaysia or Australia since coming here in 2015 does not show that he has a dedication to any particular form of activism that is fundamental to his identity or conscience, for the purposes of s 5J(3)(a), that would dominate him putting his family first.
203. I specifically asked him if he had kept up activism in support of the LGBT community whilst in Australia. He has not undertaken activist activity of that kind for the benefit of the LGBT community in Malaysia, despite the relative safety of doing so in Australia. There is no evidence from the male Applicant that he has continued, whilst in Australia, the activity of letter-writing that he said that he undertook whilst in Malaysia. He said that he had not used the [Social media 1] account that he used to advocate for the LGBT community in Malaysia, but there would be nothing which would have prevented the male Applicant from doing so within Australia, or opening a separate [Social media 1] account to do so whilst in Australia.
204. Nothing in what I have said would require the male Applicant to modify his behaviour in the sense of resiling from his beliefs in support of the LGBTQ+ community in Malaysia if he was to return to that country now, or in the reasonably foreseeable future. He may implement his beliefs in support of that community in a variety of ways, such as donation of money, as his friend [Friend B] has done, or even in membership of LGBTQ+ support groups in Malaysia. I find that he would avoid attending public demonstrations and protests of the kind which would involve him being arrested, because of his dominant devotion to his family.
Findings on correspondence from the Malaysian Police
205. Further, and separately to the above reasoning, I have considered the effect of the correspondence between the Malaysian Police and the male Applicant commencing [in] December 2014. A consistent line adopted in the correspondence from the Malaysian Police is if the male Applicant violated terms of the 'agreement' he entered into with the Malaysian Police, that 'legal action' may be taken against him, stated in the letter dated [May] 2016 to include 'fines, detention, or other legal action'.
206. That correspondence should be seen in the context of the male Applicant’s own evidence that after each occasion on which he was arrested, he was freed from detention on bail, without being charged with any offence which required him to appear in court. That correspondence should also be seen in the context of something that the male Applicant agreed with, which was the reporting [online], that a ban on the [Advocacy group 1] movement was lifted in 2014.
207. The reporting [online] stated that in 2014, ‘section 27A(1)(c) of the Police Act, which was used to ban the event, was superseded by the Peaceful Assembly Act 2012’. A review by me of the Malaysian legislation confirms that this is the case. Section 27A(1)(c) of the Police Act 1967[19] provided where an activity took place on or in any land or premises which did not constitute a public place and the activity was 'likely to be prejudicial to the interest of the security of Malaysia or any part thereof or to excite a disturbance of the peace’, a police officer may order the persons involved in the activity to stop the activity and order all persons found on the land to disperse. It was an offence for any person to disobey such an order. That provision was repealed by the Police (Amendment) Act 2012.
[19] Reprinted as of 1 January 2006.
208. The two objects of the Peaceful Assembly Act 2012, as contained in s 2 of the Act are to ensure:
(a)so far as it is appropriate to do so, that all citizens have the right to organise assemblies or to participate in assemblies peaceably and without arms; and
(b)that the exercise of the right to organise assemblies or to participate in assemblies, peaceably and without arms, is subject only to restrictions deemed necessary or expedient in a democratic society in the interests of the security of the Federation or any part thereof or public order, including the protection of the rights and freedoms of other persons.

209. There is no specific statement in the Act, other than the objects set out in s 2, that confers a statutory right to assemble peaceably and without arms. Instead, the right must be found in the combination of provisions in the Act. For example, s 7(a)(i) states that a participant in an assembly shall refrain from disrupting or preventing any assembly.
210. Otherwise, there is an obligation, under s 9(1) that an organiser shall, five days before the date of an assembly, notify the Officer in Charge of the Police District in which the assembly is to be held. Failure to do so is an offence under s 9(5). A police officer has the power to issue an order to disperse in the circumstances described in s 21(1) of the Act.
211. It appears to me that the Malaysian Police used correspondence between them and the male Applicant as a means to repress him from public activities in support of the LGBTQ+ community in Kuala Lumpur, but without any lawful authority to do so. The police in Malaysia did not charge the male Applicant with any offence which required him to attend court. The law relied upon by the police to ban public demonstrations by the [Advocacy group 1] movement, s 27A(1)(c) of the Police Act has been repealed, and the ban on public demonstrations by the [Advocacy group 1] movement lifted, a matter with which the male Applicant agreed in his evidence. Since that provision has been repealed, that the Applicant has not been charged with any offence because of any alleged breach of that provision, and he was last arrested more than 10 years ago, may explain the vagueness of the police correspondence to him about ‘legal action’ being taken against him, without reference to him being charged with any specific offence.
212. The correspondence from the police to the male Applicant is not particularly well drafted. For example, the document headed 'Confidentiality Agreement’ does not appear to be a document of that kind at all. The male Applicant gave evidence that the document itself was the confidentiality agreement, but there is nothing in it which requires confidentiality on the part of either the male Applicant or the police. Further, although the document refers to one of the options open to the male Applicant to continue to stay in Malaysia, was to move to the 'designated location', no designated location was specified by the police.
213. The correspondence does not refer to any legislative authority that the police relied on to require the male Applicant to do anything, let alone impose a choice on him that involved him leaving Malaysia.
214. After the initial round of correspondence [in] December 2014, which resulted in the male Applicant being released from detention, a consistent theme in the correspondence to him, in November 2016 and February 2018, is a requirement that he would not participate in any 'unauthorised gathering, demonstration or activity that may affect public order',[20] or not participate 'in any unauthorised assembly, demonstration or activity that may disrupt public order’.[21] The police concern with public order may have arisen from the potential for public order conflict between the supporters of the LGBTQ+ community on the one hand, and Islamic groups which opposed LGBTQ+ supporters, and a desire by the police to avoid conflict of that kind. The male Applicant gave evidence of a Muslim group attending two of the demonstrations at which the male Applicant was arrested in 2014.
[20] 4 November 2016.
[21] 11 February 2018.
215. That view is also supported by evidence that the male Applicant gave at the Tribunal hearings, as described in paragraph [65] above, that when he was released after the second detention, part of the warning given to him by the police then, not to participate in further public protests, was that the police could not control the Muslim group.
216. After the initial requirement on the male Applicant to delete pictures which showed his participation in 'any assembly, demonstration or unauthorised activity', that obligation was not re-imposed on him in the subsequent correspondence. Rather, the focus was on him not participating in any public protests.
217. In paragraph [153] above, I referred to the male Applicant saying that because 'we were previously arrested, the police will pay more attention to us'. It is difficult to see how the Malaysian police would be able to do that in the midst of any public demonstration involving any more than a handful of protesters. What the police would have to do in order to single out the male Applicant would require police officers who recognised him from previous arrests to be on duty at any public protest, so as to recognise him. However, if arrested, it would be possible to identify him from records of previous arrests.
218. The point of this analysis is twofold. First, that after the initial requirement made by the police to delete photographs from the male Applicant’s mobile phone and [Social media 1] account of him participating in public demonstrations, when he returned to Malaysia, the police did not impose on him a requirement not to undertake any activities in support of the LGBTQ+ community in Malaysia, but instead not to participate in any public demonstrations or protests. Even for that, the police do not have any firm foundation to do so under the Malaysian law.
219. Second, in the correspondence by the police to the male Applicant after 2016, they did not require him not to carry out activism of any form in support of the Malaysian LGBTQ+ community, but only not to participate in public demonstrations or assemblies. I therefore find that he would be able to carry out activism in support of the Malaysian LGBTQ+ community which does not involve participation in public demonstrations or assemblies, without fear of harm or harassment from the Malaysian police. That would coincide with what I have found is his dominant concern to put his family first before activism which could risk his arrest.
220. I also find that the male Applicant is not at risk of harm from any organised Muslim group which opposes those who support the LGBTQ+ community in Malaysia, should he return to Malaysia now, or in the reasonably foreseeable future. I arrive at that finding for the following reasons.
221. There is no evidence from the male Applicant that the Muslim group know his identity, such that they would monitor his activities, in Malaysia, in support of the LGBTQ+ community. That is also supported by him not offering any evidence, that in the five times when he travelled from Australia to Malaysia since first arriving here in 2015, did he give evidence that he had been harassed, or even contacted by the Muslim community during those visits.
222. Instead, the male Applicant’s evidence is that the Muslim group only followed the police, with him in detention, to the police station where he was detained. In that way, the Muslim group harassing him on those two occasions was opportunistic, in the sense that he was identified as a supporter of the LGBTQ+ community from being involved in the protests, rather than him being personally targeted, because the Muslim group knew his identity.
Does the male Applicant satisfy the refugee criterion for protection?
223. In applying the legislative criteria for a refugee contained in s 5J of the act, I find that there is not a real chance of the male Applicant being subject to a well-founded fear of persecution, because of a real chance that he would be subject to 'serious harm’. The primary reason is that he would not expose himself to the risk of arrest due to participation in protests or demonstrations in support of the LGBTQ+ community in Malaysia, which would subject him to arrest, because his devotion to his family is dominant over the kind of activities he may wish to undertake in support of that community.
224. Further and separate from the finding in the previous paragraph, given his history of support of the LGBTQ+ community both in Malaysia and in Australia since coming to Australia in 2015, when I apply s 5J(3) of the Act to the circumstances of his particular case, I find that he could take reasonable steps to modify his behaviour to avoid any real chance of persecution if he was to return to Malaysia now or in the reasonably foreseeable future.
225. In his evidence and submissions to the Tribunal, the male Applicant raised concerns about his stability of employment if he was to return to Malaysia now, or in the reasonably foreseeable future. Pure economic grounds such as that are not in themselves a basis for a claim to a protection visa as a refugee. However, I find that the male Applicant’s position concerning employment in Malaysia will not be made any worse by activism that he may undertake in Malaysia, consistent with what I find is his dominant concern, which is that on return to Malaysia, he would not undertake any activism that would jeopardise his family.
226. Finally, the Applicants presented evidence about the female Applicant suffering from some post-natal depression following the birth of [a] child (in [year]). That evidence is summarised at paragraphs [86]-[87] above. In particular, she said she was worried about having to go back to Malaysia and what kind of life their children would have in Malaysia, and maybe that one day their children would lose their father.
227. The possibility of illness of an applicant for a protection visa as a refugee being returned to their country of origin is not of itself a ground for a protection visa as a refugee under s 5J of the Act. However, illness connected with a well-founded fear of persecution, as defined in s 5J may amount to a cumulative effect together with a real chance of persecution in order to amount to ‘serious harm’, that is sufficient to establish a well-founded fear of persecution.[22]
[22] See, for example, Minister for Immigration and Citizenship v SZQOT (2012) 206 FCR 145.
228. I find that the female Applicant would not suffer any exacerbation of illness due to the male Applicant being subjected to persecution on the basis of his support for the Malaysian LGBTQ+ community, because his primary concern for his family will mean that he will not indulge in activism that he thought would lead to his arrest, from attending public protests or demonstrations.
Does the male Applicant satisfy the complementary protection criterion for protection?
229. Having concluded that the male Applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
230. For the same primary reason that I find that the male Applicant does not satisfy the statutory criteria of being a refugee, I also find that he does not satisfy the statutory criteria for complementary protection. That is, that because of his devotion to his family, the male Applicant would not expose himself to a 'real risk of significant harm’ for the purposes of the statutory criteria for complementary protection if he was to return to Malaysia now or in the reasonably foreseeable future. That is, he would not expose himself to arrest at any public protests or demonstrations that would lead to risk of arrest.
231. There is not an equivalent of s 5J(3) in the statutory criteria for complementary protection that would mean that an applicant for protection visa loses the benefit of complementary protection, if the applicant could take reasonable steps to modify their behaviour so as to avoid a real risk of significant harm. The reason why the male Applicant would not be exposed to a real risk of significant harm for the purposes of complementary protection command is that his devotion to his family will dominate him risking arrest at a public demonstration or protest in Malaysia.
232. The male Applicant referred to economic grounds of potential employment instability if he was to return to Malaysia. Although economic instability is not a matter specifically falling within the definition of 'significant harm' as defined for the purposes of complementary protection under s 36(2A) of the Act, it is possible that some action to prevent a person from ever gaining employment in an applicant's country of origin could be to subject that person to 'degrading treatment or punishment' within s 36(2A)(e) of the Act. However, the male Applicant is not alleging something of that kind should he return to Malaysia now or in the reasonably foreseeable future. In any event, I find that the male Applicant’s prime concern for the welfare of his family would mean that whatever activism in support of the LGBTQ+ community he would undertake in Malaysia would not be of the kind that would subject his family to economic harm of that kind.

233. Finally, on the point raised by the Applicants about the female Applicant’s anxiety increasing if she was to return to Malaysia, a risk of an applicant’s health deteriorating if returned to their country of origin is also not a matter specifically falling within the scope of 'significant harm' as defined in s 36(2A) of the Act. However, it is possible that infliction by some external source of ‘torture', 'cruel or inhuman treatment or punishment' or 'degrading treatment or punishment' within the definition of 'significant harm'[23] could cause a decline in health on the part of an applicant for a protection visa.
[23] Section 36(2A) of the Act.
234. The source of concern raised by the Applicants for how negative effects of the Applicants’ return to Malaysia is put on the basis of the consequences of activism in support of the LGBTQ+ community in Malaysia that the male Applicant would undertake if he was to return to that country now, or in the reasonably foreseeable future. The effect of my finding that the male Applicant’s primary concern is for the welfare of his family means that I find that he would not undertake activism of that kind if he thought it would result in his arrest causing harm to his family and he would therefore not undertake activism of that kind. That finding covers the potential of the actions he would take that could risk the female Applicant’s anxiety increasing, in particular that one day their children would lose their father. I find that the female Applicant’s fears about that does not form a basis for a claim for complementary protection.
CONCLUSION

For the reasons given above I am not satisfied that either 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. The female Applicant did not make her own claims for a protection visa, but instead her application for a protection visa depended on her being a member of the same family unit as the male Applicant, as someone who holds a protection visa. Since my findings are that the male Applicant does not satisfy the criteria for a protection visa, it follows that the female Applicant is unable to satisfy the criteria set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION

236. The Tribunal affirms the decisions not to grant the Applicants protection visas.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…