2306318 (Refugee) - [2025] ARTA 1479

2306318 (REFUGEE) [2025] ARTA 1479 (15 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2306318
Tribunal:General Member R Hampson
Date:15 April 2025

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

Statement made on 15 April 2025 at 11:48am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Malaysian – religion – Islam – sexual orientation – gay – recalling events from own lived experience – a member of the particular social group – gay men from Malaysia – applicant faces a real chance of serious harm throughout Malaysia – effective state protection is not available – decision under review remitted

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958 (Act), ss 5, 36, 65, 499
Migration Regulations 1994(Act), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 28 April 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 3 September 2022. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared by MS Teams video before the Tribunal on 27 March 2025 to give evidence and present arguments. The Tribunal also received oral evidence by MS Teams video from the applicants partner Mr MC. The hearing was conducted with the assistance of an interpreter who also appeared by MS Teams video in the Malay and English languages.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The issue in this matter is whether the applicant is a person in respect of whom Australia has protection obligations.
BACKGROUND
The applicant claims to be a [age] year old national of Malaysia.
The applicant claims he was born in Kota Kinabalu, Sabah, Malaysia, and his ethnicity is Malaysian and his religion is Islam.
The applicant arrived in Australia as the holder of an Electronic Travel Authority (subclass 601) on [date] June 2022.
The applicant provided a copy of the biodata page of their Malaysian passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Malaysia and there is no information before me to the contrary. I find that the applicant is a citizen of Malaysia, and that Malaysia is his receiving country for the purposes of assessing his claims for protection.
Evidence before the Department
In his protection visa application, the applicant claimed to have left Malaysia because he had problems with the government and the public and everyday he feared for his safety because of his sexual orientation, as he is gay.[1]He claims he was beaten ‘until blood by the police because of his gay lifestyle and the Malaysian government will not assist him because of his sexual orientation. He fears he will be beaten or killed if he were to return to Malaysia and continue to live as a gay man there. He fears he will be put in detention by the government and will receive counselling with regard his sexual preferences. He also fears his family’s response to his sexuality.
[1] Throughout the document the term ‘gay’ is used as this is used by the applicant. The DFAT Country Information Report on Malaysia referenced in the decision uses the term LGBTI (Lesbian, gay, bisexual, transgender, and intersex) and as such the terms will be used interchangeably.
On 7 February 2023 the delegate subsequently sent the applicant a letter under s56 of the Act requesting further information with regard his claims. The delegate was of the view the applicant’s claims about his sexuality lacked key details regarding experiences, dates, discrimination suffered, injuries he claims and requested the applicant provide additional information and supporting evidence.
The applicant was not invited to attend an interview with the delegate.
The delegate did not receive a response from the applicant and subsequently made a decision that he is not a refugee as defined by s 5H(1) of the Act and he is not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act. The delegate also found that they are not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
Evidence before the Tribunal
Pre-hearing submissions
The applicant was sent a pre constitution hearing notice on 15 January 2025 to which he replied on 17 January 2025 with further information about his claims. He stated he was afraid to go back to Malaysia because of what his family did to him when they found out he liked men and he did not want to experience that again. He said his family broke his arms once and he does not know what they may break if he goes back to Malaysia.
Oral evidence at hearing
When asked at hearing about his protection visa application, the applicant stated he prepared the document himself as he can speak English but does not have a good comprehension of written English. He said, ‘I didn’t read it. I followed the yes and no questions. I asked S (Mr. SC) if it is necessary to provide more information, but he was too busy at work to look at it. So, I did it on my own. My reading and writing are very low. He knew I would have a hearing soon and said you can provide all the information then.’
When asked about his lack of response to the s 56 letter from the delegate requesting further information, he said he remembered seeing the email pop up on his phone but could not open it as his email had corrupted and he could not access the account at all. I asked him when he saw that it was an email from the Department why he did not contact them he said ‘my phone was broken, and the email was there, and I am aware but did not respond. I called the Department many times 6 days in a row and got no answer on the call’.
Regarding his family members in Malaysia the applicant said his father died in 2014, his mother is alive and lives in Kota Kinabalu. His parents were divorced, and each had repartnered and had further children and such he has 14 siblings [all] living in Malaysia. He has contact with his mother and one of his sisters. He said, ‘the rest don’t like me’ because of his sexuality and because his brother in law assaulted him because of his sexuality and he was jailed consequently and this has caused further division in the family. He explained his father’s side of his family are ‘gangsters’ and drug dealers and he wanted nothing to do with them.
The applicant was born into a Muslim family and listed this as his religion and at hearing said this is his religion but he does not practice actively in Australia.
The applicant when asked at hearing said he had never been to school as his father was a gangster and the family moved constantly to avoid the police. He began learning English at [age] years and now has very good verbal comprehension.
He stated he work in [workplace]s in Sabah, Malaysia particularly in [an] area and again worked in [certain] areas when he moved to Kuala Lumpur. Since arriving in Australia, he said he found it difficult to get work as initially he was not able to work because of his tourist visa restrictions but then picked up a few weeks work [and] now does work for cash around his local community and in his partners business.
The applicant has travelled to [other countries] on short holidays. Although he stated he left Malaysia and went to [Country 1] after he was assaulted because he felt safer leaving Malaysia but did not have the means to stay there but needed to recover from his injuries.
Asked why he left Malaysia the applicant said he feared for his life after being assaulted by his brother-in-law and cousins in both Sabah and whilst he was later living in Kuala Lumpur. He said these assaults were because he had bought shame on the family because of his sexuality.
Relationships in Malaysia
I asked the applicant to tell me about his experience of ‘coming out’, he said, ‘I was attracted to men at [age]. I had no feeling for girls. No relationships. I acted on my attraction I figured it out when I was working in [workplace]s’.
I asked him did he have friends growing up who were also gay, he said, ‘only my sister and my mum as she is open to it and she advised him he said, ‘as long as they don’t find out what you are and how you want to live in life’. The applicant said he had told his mother and his sister that he was gay as he trusted them and they were okay with his choice if other family members did not find out. When asked about his mother’s reaction he said, ‘she was very sad when she found out, but said but do what it takes to survive’. He said his Mum would transfer money for him to a friend’s account then they give it to me. He explained that she did this because, ‘my older sister can log into Mum’s account and she didn’t want my older sister to see because there would be an argument and mum has high blood pressure and don’t want her stressed. Once I found a job, she stopped sending me money’.
The applicant spoke about his relationships in Malaysia explaining he had a relationship with, ‘a [guy] who lived outside of Kuala Lumpur and he would go there to visit him. He said the relationship lasted for about 3 months as he was from [Country 2] and was studying [in] Malaysia for a short time before returning to [Country 2]. The applicant showed me a picture on his phone of this man whilst the two were on holiday together [in] March 2021. He said they primarily communicated by Snapchat messages as these were only live on the app for 24 hours.
Assault in Kota Kinabalu
Some of his cousins and his brother in law on his fathers side found out about his sexuality as his cousin was suspicious and followed him. He explained this saying, ‘he figured it out by finding me being naked with a guy in a room. He then drove me home and bullied me a lot’. He explained on this occasion he told his cousin he was going to the cinema to see two movies and instead then went to meet [someone]. He said his cousins’, ‘knew I was engaged so they were suspicious so came looking for me and found me in a room with a man naked’. He said this was his first encounter with another man.
As a result of this he said 7 of his cousins ganged up on him and broke his arm. I asked if he sought medical treatment, he said ‘initially they didn’t allow me out of the house but my sister am and took me to the clinic when everyone was out and my arm was badly broken and I needed a cast’. I asked if he reported this to the police, he said he tried to but they ignored him as they are corrupt and ‘money can do anything’.
Assault in Kuala Lumpur
After this incident he said, ‘my sister bought me a ticket to Kuala Lumpur and sent me to live with her friend for 3 months but our cousins found me there and told me to come home. My mum wanted me to come home as my father had died by this stage’. He said his family were enraged as he had been engaged to marry a cousin and did not follow through on the wedding and this also bought shame on the family. He said whilst he was living in Kuala Lumpur his cousins and his brother in law found him and his brother in law bashed him on the street in public and the police were called, his brother in law arrested and later jailed. This event caused further distress in his paternal family and as such further animosity towards him.
Straight after this assault he caught a flight to [Country 1]to get away and recover from his injuries. He went to a medical clinic there and had x-rays which showed he had bruising and bleeding internally over his ribs. He said he bought pain medication and bandages and stayed in [Country 1] for one week before returning to Malaysia. He went to stay with a friend outside of Kuala Lumpur for one month while he recovered from these injuries and then went back to work in Kuala Lumpur in the [workplace] for three months to save money to leave Malaysia and came to Australia in 2022. The applicant showed me photo’s on his phone of his face with bruising and swelling over one eye and a photo of an x-ray showing his rib injury.
Police and state protection measures
I asked the applicant if he felt the police or any other authorities would or could protect him and he said they did protect him and take him seriously when they jailed his brother in law in Kuala Lumpur but he feared the police hear about these types of assaults all the time and may not take me seriously the next time. He said they jailed his brother in law also because he was associated with his father’s gang. He said he did not fear the authorities so much as his father’s side of his family and could not be assured that if he returned to Malaysia any authority could guarantee his protection from them as they are affiliated with gangs and have a broad network of connections.
Ability to relocate
I asked the applicant if he were to return to Malaysia could he reasonable relocate. He said he could not return to Kuala Lumpur as his family have many connections there and eventually would find out he was back and he feared they would harm him again. He said he could not return to his home in Kota Kinabalu as his extended family live there and he fears they will also assault him again. He said he would not return to Malaysia but if he had to would go to Brunei or the Philippines and live there.
Positive experiences of being gay in Malaysia
I asked if he had any positive experiences being gay in Malaysia. He said, ‘yes from the girls my coworkers in the [workplace]s, who treat me like a girl. We compared notes about guys we would see and laugh about who would be with him’.
Experience in Australia
Upon arriving in Australia, the applicant said he learnt from a transgender [social media] performer he went to see in Sydney and later spoke with that there were many gay Malaysian’s in Australia and that he should look at the protection visa criteria. He said at hearing, ‘to hell with Malaysia, I did my own research and applied for the visa’.
Relationship with current partner Mr SC
He told the Tribunal he joined the LGBTIQ dating app [and] began texting a man who he is now in a relationship with, Mr SC. He said he travelled to the country town where Mr SC lived for a festival and told Mr SC he was there, they met and had dinner. At this time, he had no accommodation and Mr SC owned rental properties and offered him a room in one of these houses. He said that Mr SC is a local business owner and is very private about his sexuality, even though everyone in town knows. He has been living in this house since 2022 and is in a relationship since that time with Mr SC.
Initially when asked if his partner could or would give a statement or witness testimony at the hearing, he said he had asked him and he was at work and was too busy. However, during the hearing, the applicant said he would try and find some work colleagues who were in a nearby building to speak with the Tribunal at during the hearing to support his application. The Tribunal hearing was adjourned for a short time while the applicant went to find colleagues. When the hearing recommenced, the applicant had located Mr SC who agreed to speak with the Tribunal. He agreed to taking an affirmation and spoke via MS teams video to the Tribunal member.
Evidence from the witness Mr SC (the applicants partner)
I spoke with Mr SC and asked him how he came to meet the applicant and he said they had met in 2022 on the dating platform [and] began chatting and then the applicant had come to his hometown and they met in person and formed a relationship from that time. He said the applicant does not live with him but lives in a house owned by him, they see each other several times a day, eat meals together and the applicant has open access to his ATM card to purchase food and daily necessities. The witness was a man of very few words and said he was very embarrassed having to speak with the Tribunal but was open in his conversation.
Post hearing submissions
The applicant provided the following documents after the hearing in support of his ongoing relationship with his current partner Mr SC:
a)Screenshots of conversations between the two partners.
b)Several photos of the applicant and Mr SC kissing and in bed together.
Country Information
I have considered a range of country information including the most recent DFAT Country Information report on Malaysia which provides a section specifically on sexual orientation and gender identity.[2]
[2] DFAT Country Information Report on Malaysia, Department of Foreign Affairs and Trade, 24 June 2024.
The DFAT Report states that as a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent.[3]
[3] Ibid, section 3.126, page 32.
Across Malaysia, there are 52 laws that criminalise different forms of LGBTQIA+ behaviour. Prosecutions have taken place under these laws, including under s 377A and 277B (Unnatural Offences) of the Penal Code, which includes penalties of whipping and up to 20 years in prison. Numerous state-level syariah-based laws prohibit same-sex relations and non-normative gender expression.[4]
[4] Ibid, section 3.127, page 32.
While government stances on LGBTQIA+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and penal code offences.[5]
[5] Ibid, section 3.128, page 32.
Successive Malaysian Prime Ministers have made anti-LGBTQIOA+ statements. Most recently in January 2023, Prime Minister Anwar said recognising LGBTQIA+ identities and behaviours “will not happen, and God willing under my administration this is not going to happen”. The DFAT Report goes on to say that the environment for LGBTQIA+ people had not improved under the Anwar Government.[6]
[6] Ibid, section 3.129, page 32.
Authorities at federal and state level have promoted so-called ‘rehabilitation’ or ‘re-education’ programs aimed at changing sexual orientation or gender identity, also known as conversion therapy. Although these programs are primarily aimed at Muslims, Christians are also targeted. According to the US State Department, as of June 2021, at least 1,733 people had attended such programs. While conversion programs are voluntary, in the sense that they are not court-ordered, in practice people were often coerced to attend by authorities and their communities.[7]
[7] Ibid, section 3.132, page 32.
LGBTQIA+ issues are considered taboo in Malaysia, particularly among Muslims. Online abuse against people who raise LGBTQIA+ issues online is common.
In general, the state is able but is not willing to offer effective protection. State authorities have been responsible for harassment, discrimination, and violence towards LGBTI persons with reports of physical and sexual assaults by police.[8]
[8] UK Home Office Country Policy and Information Note – Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024, sections 4.1.1-4.1.2, page 13.

Despite state actors insisting that the fundamental rights of LGBTI people are protected under the Federal Constitution, are treated equally, and have access to government services and assistance without discrimination, same-sex activity remains illegal. LGBTI persons are arrested for offences related to their gender identity and/or expression, which particularly affect trans persons and Muslims. It would therefore be unreasonable to expect a person identifying as LGBTI to seek protection from authorities.[9]
[9] Ibid, section 4.1.3, page 13.
The DFAT Report states that people in Kuala Lumpur were generally more accepting of LGBTQIA+ people than in East Coast peninsula Malaysia or Sarawak and Sabah.[10]
[10] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, section 3.147, page 35.
The UK Home Office states in its Country Policy and Information Note on sexual orientation and gender identity or expression in Malaysia that whilst homophobic attitudes are prevalent throughout Malaysia, particularly in more conservative Muslim areas, the federal territory of Kuala Lumpur is considered more tolerant of LGBTI persons.[11]
[11] UK Home Office Country Policy and Information Note – Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024, sections 5.1.3, page 13.
Malaysia’s oldest gay bar, the Blue Boy nightclub in Kuala Lumpur, which operated without incident for 30 years, was raised in August 2018. 20 men were detained and ordered by the Federal Territory Islamic Religious Department of Malaysia to have counselling for ‘illicit behaviour’.[12]
Overall assessment of discrimination and harm levels for same-sex persons in Malaysia
[12] Ibid, section 3.1.18, page 9.
The level and frequency of discrimination faced by members of the LGBTQIA+ community differs according to their sexual orientation and gender identity, socio-economic status, religion, geographic location, and degree of openness regarding their sexual orientation and gender identity. Well-educated urban LGBTQIA+ individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than poorer individuals in rural areas.[13]
[13] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, section 3.147, page 35.
DFAT assesses that members of the LGBTQIA+ community face a high risk of official societal discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assesses that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay-Muslim, poor, transgender, and/or live in rural areas face a high risk of official societal harassment, discrimination, and familial and/or societal violence.[14]
ANALYSIS, REASONS AND FINDINGS
[14] Ibid, section 3.148, page 35.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The issue in this case is whether the applicant have a well-founded fear of persecution in relation to his home country of Malaysia and does he meet the refugee protection provisions in the Act and or does he meet the complementary protection provisions of the Act and as such is owed complementary protection by Australia. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Whilst there is a lack of detail in the applicant’s protection visa application and he did not respond to the delegates request for more information and this has meant he has presented new information at the hearing that was not previously before the initial decision maker. S 367A therefore requires the Tribunal to make a consideration regarding potentially adverse information. I have considered the reasons the applicant has stated on my questioning about this point and I accept his account of the reasons for this. The applicant completed the protection visa application in English of his own volition and admits he speaks English well his reading and writing of the language, not his native tongue are much less limited. He stated he tried to contact he Department on a number of times when he saw there was a letter from them that he could not open. I found the applicants telling of this information consistent and genuine.
I have given weight to the applicants oral evidence to the Tribunal and I am satisfied he is recalling events from his own lived experience. His evidence was generally consistent regarding his sexuality, the harm he experienced in his home village in Malaysia and the discrimination and physical harm he faced from his own family. This information has been supported by country information.
The applicant states he is born of a Muslim family and whilst he does not practice his faith in Australia he has not and cannot denounce it. Country information states that apostasy is a criminal offense punishable by a fine or a prison term in the states of Perak, Melaka, Sabah, Pahang, Kelantan, and Terengganu’.[15] The applicant is from Sabah.
[15] DFAT Country Information Report for Malaysia, dated June 2024 at [3.55].
Considering the above I accept the following claims as credible:
a)The applicant is a gay man;
b)The applicants religious status is ‘Muslim’;
c)The applicant commenced his first homosexual relationship in about 2017;
d)At about this time his fathers family found out and assaulted him and denied him medical treatment, this occurred whilst he was living in his home area of Kota Kinabalu, Sabah.
e)He then moved to Kuala Lumpur and had a short relationship with a Saudi Arabian man which ended when this man returned to his home country at the conclusion of his study.
f)He was again physically assault by his father’s family members whilst living in Kuala Lumpur, however the police were called as the event occurred in the street, the offender was arrested and later jailed causing more friction with the applicant and his paternal family.
g)The applicant came to Australia and commenced communicating via a dating app with his current partner Mr SC.
h)The two have now been in a relationship since 2022 and although they do not live together the applicant resides in a house owned by his partner and does some work in his Mr SC’s business and is supported financially in part by Mr SC.
i)The applicant has limited contact with mother and one sister in Malaysia and no contact now with the rest of his family.
Does the applicant satisfy the refugee criterion for protection?
Based on the applicants circumstances, I consider there is a real chance, being a possibility that is not remote or far-fetched, that the applicant would be subjected to harm in the reasonably foreseeable future if he were returned to the home area of his receiving country, Malaysia.
I accept that there is a real chance he will suffer serious harm by way of violence in his community, arrest by police and significant discrimination by his family and Malaysian society in general if he returns to his previous place of residence in Kota Kinabalu, Sabah, Malaysia or attempts to relocate to any other region in Malaysia now or in the reasonably foreseeable future. I accept the harm may include significant physical and verbal harassment and ostracization and ill treatment of the applicant such that would constitute serious harm for the purposes of s 5(J)(5) of the Act.
I must consider whether the harm the applicant fears is for reasons of his race, religion, nationality, membership of a particular social group or political opinion, I consider that it is for the reason of the applicant’s membership of a particular social group, namely “gay men from Malaysia”. I consider that this group is identifiable by the characteristics of gender, sexual orientation, and nationality and that the common characteristics or attributes are not a shared fear of persecution. I am satisfied that the harm that the applicant fears is for reason of his membership of a particular social group for the purpose of s 5J(1)(a).
If the applicant were to return to Malaysia and hide his sexual identity to avoid threat of serious harm this would be considered a modification to his behaviour to avoid harm in Malaysia for reasons of his membership of a particular social group of gay men living in Malaysia. This then would conflict with a characteristic that is fundamental to his identity or conscience, conceal an innate or immutable characteristic or alter his sexual identity or conceal his true sexual orientation. Therefore, he cannot be required to take steps to modify his behaviour, such as by returning to Malaysia and living discreetly to avoid the feared persecution pursuant to s 5J(3).
I accept on the basis of the applicant’s past experiences and above country information that community and government attitudes and hostility towards the LGBTI community in Malaysia are pervasive and underpinned by Islamic doctrines which applies to all Malaysian Muslims and are such that the real chance of persecution cannot be said to be restricted to a particular area of Malaysia, and that the risks faced by the applicant would not be mitigated by relocation to another area other than the one he lived in prior to coming to Australia.
The applicant reported that when his fathers family found out he was gay he was subjected to harassment and physical assaults on two occasions requiring him to on one occasion leave Malaysia for [Country 1] for a week to hide and recover. This experience is echoed in the DFAT report on Malaysia. Malaysia is a conservative Islamic nation and is generally intolerant of LGBTIQ+ identities and behaviours and adult same sex acts are illegal regardless of age and consent.[16]Across Malaysia there are 52 laws that criminalise different forms of LGBTIQ+ behaviour and prosecution is common and can be severe with reports of whipping and prison terms up to 20 years.[17]
[16] Ibid at [3.126].
[17] Ibid at [3.127].
I have considered country information stating Kuala Lumpur is considered a more reasonable place for LGBTIQ+ people to reside but in this matter the applicant has previously resided in Kuala Lumpur and was at significant risk there at the hands of his paternal family as he was physically assaulted and the offender, a family member was jailed. As such I do not accept the applicant could reside safely in Kuala Lumpur. Country information as detailed in paragraphs 46-48 and that states such as Sabah where the applicant is originally from are considered the most conservative with regard LGBTIQ+ persons and behaviours and as such I do not accept the applicant could be considered safe from harm if he were to return to this his home state. There is no other area within Malaysia identified in the country information which appears safe for the applicant to reside in.
The applicant was born into a Muslim family and as such is still bound by syariah laws which criminalise sexual activity between men. It is difficult and arduous to attempt to leave the Islamic faith and this involves lengthy legal battles in federal civil court and syariah state courts often without success.[18]Based on this country information which confirms the difficulty in formally renouncing Islamic faith, I find that the applicant’s sexuality will continue to be governed by Islamic law in Malaysia, regardless of whether he is a practising or non-practising Muslim.
[18] Ibid section [3.58].
I am not satisfied that the applicant would have access to effective protection from harm. Country information indicates that the Malaysian government and authorities are at times hostile towards the LGBTI community. This leads me to find that the harm feared is either inflicted by the state or its agents or that the state is complicit in the harm feared.[19] I am not satisfied therefore the applicant has access to effective protection in all areas of the receiving country, Malaysia as is the criteria in s 5J(2).
[19] MIMA v Respondents S152/2003 (2004) 222 CLR at [23] per Gleeson CJ, Hayne and Heydon JJ.
If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a) of s 5J that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution. I am satisfied the applicant fears persecution for reasons of his membership of a particular social group and these are the essential and significant reasons per s 5J(4)(a) and that the persecution he faces involves systematic and discriminatory conduct per s 5J(4)(c).
In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph S 5J(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. I am satisfied the applicant did not engage in conduct for the purposes of strengthening his claim to be a refugee such that his relationship claims are consistent, supported by evidence and witness statements and testimony.
I am also satisfied that the applicant does not have a right to enter and reside in a third country and meets s 36(3).
I find that the applicant is a refugee as defined in s 5(H)(1) of the Act. For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
DATE OF HEARING: 27 March 2025
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.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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