2307167 (Refugee) - [2024] ARTA 800

2307167 (Refugee) [2024] ARTA 800 (19 December 2024)
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2307167

Tribunal:General Member P Wearne
Place:Sydney
Date:19 December 2024

CORRIGENDUM
Date of Corrigendum:3 January 2025

Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alterations are made to the decision:
The following text regarding suggested typographical edits (these do not form part of the decision record) have been removed from the decision record.
Cover of decision record:
‘Commented [KT1]: Given the applicant's gender identity, I would suggest reviewing this and amending this (I know this is an automatically generated thing). I would suggest removing it altogether with just the applicant's name (this is the most neutral option)’
Page 2 of decision record:
‘Commented [KT2]: I have amended this to be in line with the rest of the decision record which uses "syariah"’
Page 11 of decision record:
‘Commented [KT3]: Please double check the hyperlink in footnote 21 - it opened a different article when I opened it’
Statement made on 03 January 2025 at 11:59am
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2307167
Tribunal:General Member P Wearne
Date:19 December 2024

Place:Sydney
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 19 December 2024 at 5:00pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – masculine-presenting homosexual woman – bullied at school and employment terminated – no disclosure to family – no medication or surgery – consistent presentation and evidence – committed and ongoing relationship and partner’s related protection visa application – country information – national and state syariah laws, conservative political statements and social attitudes, harassment and violence – effective protection measured not available and real chance of serious harm even in major city – modification of behaviour not required – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5H(1), 5J, 5L, 5LA, 36(2)(a), 65
Migration Regulations 1994 (Cth), 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 on 22 May 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the decision to refuse the protection visa on 24 May 2023.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) (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 applicant, who claims to be a national of Malaysia, applied for the visa on 8 January 2020. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a refugee as defined by s 5H(1) of the Act, or that there are substantial reasons for believing that there is a real risk the applicant will suffer significant harm as defined in s 36(2A).
The applicant appeared before the Tribunal on 13 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin language. The Tribunal also received oral evidence from [Ms A] who is an applicant in a related Tribunal proceeding.[1]
[1] 1922977 also constituted to me to determine. The hearing in the Tribunal file 1922977 proceeding was held on 12 December 2024.
As discussed below, the applicant in the current case was born female but considers and presents themselves to be more male than female. Accordingly, this decision record uses the pronouns ‘they’, ‘their’ or ‘them’ in referring to the applicant.
The issues in this case are whether there is a real chance, if the applicant returns to Malaysia, that the applicant would be persecuted for 1 or more of the 5 reasons set out in s 5J(1).[2] And, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
[2] The 5 reasons are race, religion, nationality, membership of a particular social group or political opinion.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted.
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.
Independent information
The 2024 Department of Foreign Affairs and Trade (DFAT) Country Information Report Malaysia (the DFAT Report) states the following regarding sexual orientation and gender identity:
- All same-sex sexual conduct is illegal in Malaysia under both federal law and state syariah provisions.[3]
- As a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ [4]identities and behaviours.[5]
- LGBTQIA+ issues are considered taboo in Malaysia, particularly among Muslims.[6]
- Across Malaysia, there are 52 laws that criminalise different forms of LGBTQIA+ behaviour. Prosecutions have taken place under these laws, including under s 377A/377B (Unnatural Offences) of the Penal Code, which includes penalties of whipping and up to 20 years in prison. Numerous state-level syariah-based laws prohibit same-sex relations and non-normative gender expression. In February 2021, a 9-judge panel of the Federal Court unanimously declared that a Selangor syariah law criminalising ‘unnatural sex’ was unconstitutional. This means that the federal law stands, but that state laws against same-sex sexual activity are invalid. In-country sources reported in 2022 that 3 states added new laws relating to LGBTQIA+ people based on syariah over the last five years.[7]
- While government stances on LGBTQIA+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and Penal Code offences. These laws prohibit males cross-dressing and/or presenting as women, and in some cases, females cross-dressing and/or presenting as men.[8]
- Successive Malaysian Prime Ministers have made anti-LGBTQIA+ statements. Most recently, in January 2023, Prime Minister Anwar said recognising LGBTQIA+ identities and behaviours ‘will not happen, and God willing under my administration this is not going to happen’. In-country sources told DFAT that the environment for LGBTQIA+ people had not improved under the Anwar Government.[9]
- JAKIM and other state level religious authorities have occasionally conducted raids on LGBTQIA+ events. State officials have conducted raids on private premises, sometimes accompanied by members of the Royal Malaysian Police (RMP). Some in-country sources reported that authorities conducted such raids as a means of creating income through extortion and blackmail.[10]
- Authorities at federal and state level have promoted so-called ‘rehabilitation’ or ‘re-education’ programs aimed at changing sexual orientation or gender identity, also known as conversion therapy. Although these programs are primarily aimed at Muslims, Christians are also targeted. According to the US State Department, as of June 2021, at least 1,733 people had attended such programs. In-country sources reported that conversion programs were ‘voluntary’ in the sense that they were ‘not court-ordered,’ but in practice, people were often coerced to attend by authorities and their communities. According to multiple sources, the Terengganu Government has run a ‘re-education boot camp’ or ‘behaviour corrective program’ in Besut for teenage males since 2010, where boys identified as ‘effeminate’ are sent for physical training and religious and motivational classes; while the Negeri Sembilan Religious Affairs Department held a 2-day camp as part of the state’s Action Plan Against Social Ills of LGBTQIA+ 2017–2021.[11]
- In country sources reported in 2023 that an administrative circular was circulated in schools permitting caning of LGBTQIA+ students, framing it as a correctable ‘disorder’. In-country sources also reported cases of gay students being expelled from school for their sexuality. People stopped by police have sometimes had their phones checked for LGBTQIA+-related messages and dating apps such as Grindr. Such checks were reportedly particularly prevalent during COVID-19 pandemic lockdowns.[12]
The DFAT Report also notes that in September 2018, a syariah court in Terengganu state sentenced 2 women to 6 strokes of the cane and a fine of MYR3,300 (AUD 1,100) after convicting them of having lesbian sex. The caning, carried out in a courtroom in front of 100 witnesses, was the first such sentence to be ordered in relation to a LGBTQIA+ case since 2010. While the investigation of such offences is reasonably common, and prosecutions have occurred, successful prosecutions are rare.[13] In relation to the same case, a Human Rights Watch report from August 2022 noted ‘The court carried out the caning on September 3 [2018], in public, as one Terengganu official told the press, “to serve as a lesson to society”’.[14]
[13] DFAT Report para 3.131.
[14] HRW, ‘I Don’t Want to Change Myself’ Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia.
The DFAT Report also notes that lesbians and queer women are much less visible in Malaysia than other members of the LGBTQIA+ community. This is maybe largely due to LGBTQIA+ activism in Malaysia being historically focused on HIV— often the only issue considered ‘acceptable’ for government engagement.[15] This ‘invisibility’ is echoed in a UK report that states, [s]ources often report on the ill treatment of trans women rather than that of trans men, and it is unclear whether this is due to under-reporting or whether such treatment against trans men occurs less frequently.[16]
[15] DFAT Report para 3.138
[16] Guidance: Country policy and information note: sexual orientation and gender identity or expression, Malaysia, July 2024, UK Government, updated 12 July 2024 – accessed 16 December 2024.
LGBTQIA+ issues are considered taboo in Malaysia, particularly among Muslims. Online abuse against people who raise LGBTQIA+ issues online is common. NGO Justice for Sisters reported in 2023 that doxxing of LGBTQIA+ people in the media and social media was also common.[17]
[17] DFAT Report para 3.133.
Trans people face limited opportunities in official employment and difficulties in accessing healthcare due to transphobia. LGBTQIA+ persons face harassment, arbitrary arrest and detention and police sometimes perpetrate and condone violence against individuals including in custody. In general, the state is able but is not willing to offer effective protection.[18]
[18] Guidance: Country policy and information note: sexual orientation and gender identity or expression, Malaysia, July 2024, UK Government, updated 12 July 2024 – accessed 16 December 2024.
The DFAT report assesses that members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities.[19] The same UK report referred to above notes that LGBTQIA+ people face harassment, arbitrary arrest and detention and police sometimes perpetrate and condone violence against individuals including in custody.[20] The DFAT report also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence. LGBTQIA+ civil society organisations face a moderate risk of official discrimination in the form of legal charges and harassment by officials.[21]
[19] DFAT Report para 3.148.
[20] Guidance: Country policy and information note: sexual orientation and gender identity or expression, Malaysia, July 2024, UK Government, updated 12 July 2024 – accessed 16 December 2024.
[21] DFAT Report 3.148.
Violence against trans persons is under-reported. They face limited opportunities in official employment and difficulties in accessing health care due to transphobia.
Trans persons who are open about their gender identity may be at risk of treatment by non-state actors which amounts to persecution. However, this is likely to depend on an individual’s socio-economic status, religion, and geographic location. Kuala Lumpur (KL) is generally considered more tolerant of LGBTQIA+ people than other areas in Malaysia and it could be reasonable for a person to relocate there.[22]
CLAIMS AND EVIDENCE
[22] Guidance: Country policy and information note: sexual orientation and gender identity or expression, Malaysia, July 2024, UK Government, updated 12 July 2024 – accessed 16 December 2024.
The application form indicates the applicant is a [Age]-year-old[23] female born in Johor, Malaysia who has never married. The applicant departed Malaysia [in] November 2019 on a Malaysian passport valid to 2024. No details are provided of family members, education, employment or previous travel. The applicant speaks, writes and reads Mandarin.
[23] Born in [Year].
In giving reasons for claiming protection, the applicant states that they are lesbian. In Malaysia, people didn’t like the applicant because of this and the applicant suffered depression. The applicant tried to suicide. The applicant was discriminated against and treated unfairly because of their sexuality and race. The applicant decided to join their partner in Australia. The applicant didn’t seek help in Malaysia because they didn’t think they would be helped. The applicant is unknown in Australia and so feels relaxed here. The Malaysian authorities won’t protect the applicant because being a lesbian is illegal and the authorities don’t care about homosexual people or how they feel. The applicant doesn’t want to return to Malaysia because their partner does not have money to move, and the applicant does not want to feel pain again.
The applicant responded to the Department’s request for more information in a statement dated 12 April 2022. Relevantly, the applicant identified [Ms A] as their partner. A summary of the statement follows:
The applicant and [Ms A] met in December 2018 in Malaysia. Since joining their partner in Australia, the applicant and [Ms A] have worked on [workplaces] doing seasonal [work task]. The applicant loves [Ms A]. The applicant and [Ms A] are still together and happy living as partners in Australia without any discrimination.
The applicant’s mother has passed away. The applicant’s father is [an occupation] and lives at the address provided in the protection application. The applicant is in contact with their father. The applicant does not discuss their sexuality with their family because the applicant fears their disrespect. However, because of the applicant’s masculine appearance, the applicant considers that some family members may assume that the applicant is a lesbian. The applicant does not currently have issues with family members.
It was a difficult time when the applicant realised that they were lesbian. The applicant was confused and anxious about their sexuality and tried to hide it in Malaysia. But because of their masculine appearance, the applicant felt judged. People realised that the applicant was a lesbian. The applicant couldn’t stand it anymore in Malaysia and had to find a place where people accept the applicant and did not discriminate. Over time, the applicant has become more open about their sexuality and the applicant is now a proud lesbian.

The applicant did not feel respected as a human in Malaysia and felt stressed and depressed. People were always suspicious about the applicant. For example, when the applicant worked with female customers, the applicant always felt that they were expecting the applicant to take advantage of them somehow.
The applicant fears harm from the Islamic Department of Malaysia, Malaysian police officers, non-government organisations that are anti-LGBTIQ+ and general society.
The applicant did not find a place where they felt respected in Malaysia. So far, the applicant hasn’t had a hard time with the authorities in Malaysia. However, on one occasion, the applicant was stopped by police who treated the applicant like a bad person because of the applicant’s masculine appearance.
The applicant feels disrespected in Malaysia and does not feel strong enough mentally to cope with the way that people react to them. The applicant wants to be free and happy. If the applicant returns to Malaysia, they will be depressed and may suicide.
The applicant submitted 7 photos of the applicant and [Ms A] looking relaxed and loving. The applicant also submitted an eStatement from their bank (also [Ms A]’s bank) indicating the applicant and [Ms A] reside at the same address.
The delegate made findings that the applicant is a Chinese Malaysian of Buddhist faith, who is a masculine-presenting lesbian with short hair and masculine dress sense. The delegate also found that the applicant had experienced past instances of harm in Malaysia in the form of harassment and discrimination due to their sexual orientation and physical appearance. However, the delegate decided that on the evidence available, no finding could be made as to whether the applicant was in a relationship with the person claimed to be applicant’s partner in the photographs.[24]
In refusing the application, the delegate was not satisfied that there was a real risk that the applicant would suffer serious harm on return to Malaysia. Amongst other things, the delegate’s findings that the applicant was a non-Muslim with no activist profile were relevant to this finding.
Statement and photos submitted to the Tribunal
[24] Page 4 of 14.
On 27 October 2024, the applicant submitted a statement to the Tribunal. However, during the hearing when I queried the written claim on it that the applicant ‘identified as female’, the applicant appeared genuinely surprised and strongly denied making this claim, adding that they had not been aware of what had been written in the statement on their behalf. Given that the applicant clearly is of a masculine appearance and manner and because I accept that the applicant is unaware of the contents of the written statement, I will not consider the statement in more detail.
The applicant also submitted 4 additional photos of themselves and [Ms A].
Tribunal hearing
At the hearing before the Tribunal, the applicant gave evidence about their family and growing up in Malaysia. The applicant has an older sister and younger brother. Growing up, the applicant was close to their mother but frightened of their father who beat the applicant regularly. The applicant is still afraid of their father.
Ever since the applicant was a young child, they felt that they were a boy but in a girl’s body. The applicant said that they are biologically female but ‘psychologically’ feels like a male. The applicant has always dressed like a boy, and later, a man. The applicant has always had a male haircut. Ever since the applicant was little, they had wanted to be a boy.
The applicant cried spontaneously and looked genuinely upset when talking about experiences at school, which they found a fraught and difficult experience. The applicant left school aged 13 years old. The applicant did not have any friends and felt like no one liked them. The applicant sat alone during breaks and did not play with the other children. One day, a large boy picked a fight with the applicant. The applicant fought him back. Other students intervened before a teacher arrived. The applicant had done nothing to provoke this aggression, which the applicant assumed was caused by reaction to the applicant looking and acting like a boy.
The applicant said after they refused to attend further schooling, they stayed at home with their mother, and at other times, met with friends in the park. The applicant was angry after their school experiences and was a rebellious teenager. On one occasion, a member of another gang challenged the applicant in the park. The applicant was derided and called a tomboy. Then a fight started. A member of the other gang hurled a ball at the applicant, which hit them hard. The applicant was hurt but not seriously.
When the applicant was about 15, the applicant was stopped by 2 policeman and taken to the police station located very close to the applicant’s family home where they were detained overnight. The 2 policemen challenged the applicant about why the applicant dressed like a boy. They called the applicant a ‘lesbian’. The applicant became very upset again in giving this evidence. The applicant said that they were not held in a police cell, but kept in police offices. When I expressed surprise that a minor would have been detained overnight in this way, the applicant said that was ‘not an unusual situation’ in the village. The applicant’s mother came to the police station in the morning. She did not act angrily to the police for holding the applicant overnight. She just wanted no more trouble and to get the applicant home. When I asked if the police had otherwise treated the applicant badly, the applicant replied that they been ‘okay’ and given the applicant a cup of coffee. Nonetheless, the applicant had been clearly frightened and remains affected by this event.
The applicant’s mother died when the applicant was 17 years old. The applicant became very upset giving this evidence. The applicant felt loss because they felt that the only person who might have understood them had died. The applicant had found out that neighbours had been questioning the applicant’s mother as to why she would allow her daughter (the applicant) to dress up and behave like a boy. The applicant stated that they think their mother might have known that the applicant was a lesbian. The applicant’s mother never discussed the issue with the applicant until one day when she was upset. She told the applicant that she had a ‘painful heart’. Very soon after the applicant’s mother died because of heart problems and the applicant has always felt guilty that they caused their mother’s death. The applicant did not want to remain in the family home after this. The applicant was not close to their father, particularly at this time.
The applicant moved to Kuala Lumpur (KL) and worked in [a] business owned by the applicant’s uncle. Although they were not particularly close, in this arrangement, the applicant felt that their uncle protected the applicant while the applicant worked in this business because the applicant was also able to live in accommodation upstairs in the business premises. The applicant worked for that same company for 17 or 18 years and continued living in the same room at the premises that whole time, even after the uncle sold the business.
Over time, the applicant went from selling [products] to customers who came to the premises to selling [products] outside the premises. However, the applicant’s employment was eventually terminated in 2018 because clients complained about the applicant’s masculine or tomboy appearance and manner. The applicant explained that the [clients] were mostly older and more conservative. They did not like the way that the applicant presented in a mannish way.
The applicant told me that they that felt disliked ‘every day’ because of how the applicant looked and dressed. The applicant has always been teased and verbally threatened because of the way the applicant presented. One time in 2018, a man said to the applicant that he was ‘going to get’ them and rape them.
I noted that they presented like a male and that their voice was deep. I noted that even in their Malaysian passport photo, their haircut was very boyish. The applicant agreed. They said they would not change the way that they want to present to the world. This is the way they are. I asked if the applicant had ever taken any steps to become a male, like medication or surgery. The applicant said that they had not. The way they are now is the way they will be. I noted that the applicant had been given the title ‘Mr’ regarding their address information shown on the Australian banking eStatement that had been submitted to the Tribunal. I asked if the applicant had requested to be addressed in this way. The applicant said that they had not and that the bank officer must have assumed that the applicant was a male.
The applicant told me that they had their first lesbian relationship aged about 15 years old. Although it was not a sexual relationship, it was a close emotional one that lasted less than a year. When the applicant was 16 years old, the applicant had another lesbian relationship with a 13-year-old girl. This relationship was also not sexual but there was love, puppy love.
The applicant’s first sexual lesbian relationship was when the applicant was working and living at the uncle’s [business] in KL. The relationship was very hidden from others’ view. The applicant and their lover had sex only if no one else was around in the applicant’s dormitory on the business premises. The applicant and their lover were very careful. They never demonstrated any public affection. Their relationship ended after less than 2 years because the applicant realised that their partner was using the applicant for money. The partner kept requesting money for gifts and items that never eventuated.
The applicant’s next lesbian relationship was with [Ms A]. The applicant’s evidence about how and when they met and how their relationship developed was consistent with [Ms A]’s evidence given in the hearing in that matter on 12 December 2024. The applicant and [Ms A] met in hotels about once a week. They were unable to live together in KL, Malaysia, although they would have liked to have done so.
The applicant also gave corroborative evidence about how they discussed and arranged to come to Australia. The applicant said that [Ms A] came first because the applicant first needed to return to their hometown. The applicant said that they had been away for 17 or 18 years and needed to make amends with family members. Specifically, the applicant wanted to say goodbye to their aunt, their mother’s sister, who has supported the applicant and who assisted the applicant financially to come to Australia. This aunt is the only family member who the applicant has told about their lesbian relationship with [Ms A]. This aunt is happy for the applicant.
The applicant says that with [Ms A] it was love at first sight. The applicant told me that they are very committed to [Ms A] and they are a loyal partner. The applicant sees their future with [Ms A] and they would like to marry [Ms A] one day. The applicant spoke about [Ms A] and their relationship with warmth, affection and gentle teasing. I noted that [Ms A] had described the applicant as being very protective in their relationship. The applicant agreed. The applicant said that [Ms A] looks after the applicant and added that [Ms A] does the cooking and housework.
I noted that the applicant referred to themselves as ‘[Alias 1]’ in correspondence with the Tribunal. [Ms A] had told me in her hearing the previous day that she also called the applicant ‘[Alias 1]’. The applicant told me that ‘[Alias 1]’ is the name that they chose for themselves when working at the [business] and has used it ever since.
I asked about what harm the applicant feared on returning to Malaysia by themselves or with [Ms A]. The applicant said that they remained frightened of the police. The applicant wants to keep living with [Ms A], but said that it would be very difficult to do so, even in KL. The applicant was concerned that [Ms A] would get physically attacked if their relationship became known. Also, [Ms A]’s family will never accept their relationship. The applicant said that they have suffered verbal and personal abuse because of the way the applicant looks and dresses which is like a boy. The applicant said that despite all the criticism, teasing and feeling afraid, they will not change the way they present.
REASONS AND FINDINGS
Nationality
On the basis of the applicant’s Malaysian passport, and their consistent claims in support, l accept the applicant is a national of Malaysia and considers Malaysia is the country of nationality and the receiving country for the purpose of assessing the applicant’s claims against the refugee and complementary protection criteria respectively.
Consideration of applicant’s claims
I found the applicant to be credible in their evidence, which was given naturally, consistently and without hesitation. The applicant provided detailed evidence and would, from time to time, go back to clarify a particular point or correct a small detail.
Although having a small build, the applicant has a definite masculine appearance. In every photo submitted, including that on their Malaysian passport, the applicant shows a very short haircut, cut in a masculine manner. The applicant wears no makeup. In person, the applicant is the same – walking in a confident masculine manner and using a deepish speaking voice. The applicant presents as what they claim to be: a man in a woman’s body, responding to my questions with a mixture of pride and vulnerability.
I accept the evidence that the applicant left school at the age of 13 after experiencing traumatising experiences there and that they were a rebellious teenager. I accept that the applicant was provoked into a physical fight at school and later, as an adolescent, challenged by another gang member because of their masculinity. I also accept that the applicant was detained overnight by police in the applicant’s hometown as claimed. Although, I acknowledge that the applicant was not further mistreated by the police while detained, this incident was frightening and became a defining incident for the applicant. The applicant remains scared of Malaysian police and their powers to detain, including in respect of illegal homosexual activity.
I accept the applicant’s evidence that they worked for their uncle’s [business] and lived in accommodation on those business premises for 17 or 18 years, and that in this way that the applicant was ‘protected’ from scrutiny from authorities and others while the applicant was employed and accommodated within this secure environment. I also accept that the applicant was dismissed from their job in KL because of complaints from clients about their masculinity. I also accept the applicant’s claim they were depressed by the treatment of others to them because of the applicant’s appearance or assumed sexuality.
I consider that despite the teasing, taunting and verbal abuse the applicant received because of their masculinity, the applicant remains resolute and almost defiant about who they are and how they look. Although I accept that there would have been a time when the applicant was confused and anxious about their sexuality, those days are long gone. I consider that the applicant has been the way that they now present for many years and would not modify their appearance or mannerisms if returned to Malaysia.
Given the consistent evidence provided by [Ms A] in her hearing on 12 December 2024, together with supporting photos and the bank records, I accept that the applicant and [Ms A] are in a committed on-going relationship and that they have lived together as romantic partners after the applicant arrived in Australia in December 2019. I take reassurance in this finding in that their lesbian relationship was confirmed through oral evidence provided by their supervisor in a phone call during [Ms A]’s hearing on 12 December 2024. Because I consider them to be credible witnesses, I also accept, despite the lack of corroborative photo evidence, that the applicant and [Ms A] met in Malaysia in December 2018, 6 months before [Ms A] came to Australia. I also accept that although they arrived here at different times in 2019, they planned to come to Australia to be together.
For completeness, I specifically find that the applicant and [Ms A] have lived together for 5 years and continue to do so, in a genuine relationship (albeit in shared accommodation with others in the home), that they pool their financial resources to some extent, hope to get married in the future and that they hold themselves out to others (including their work supervisor) to be a couple. I accept that they are in a committed relationship. I accept the applicant’s and [Ms A]’s evidence that they do want to continue their relationship but would be very concerned about doing this openly in Malaysia for fear of harm, and that they would have to try and pursue their relationship secretly or possibly even cease their relationship due to disapproving societal attitudes or violence from the Malaysian community in general. The applicant presented as being less compromising than [Ms A] regarding the latter. [Ms A] was particularly worried that societal attitudes and her family’s reaction could put too much pressure on her relationship with the applicant.
As discussed above, I accept the experiences described by the applicant genuinely occurred, and that they hold the claimed fears of returning for reasons of their sexuality and their committed and on-going relationship with [Ms A]. I consider that in Malaysia, the applicant would be perceived as being trans man or lesbian (or masculine lesbian), and that the applicant’s relationship with [Ms A] would be perceived as a lesbian relationship.
While the applicant has always suffered verbal abuse, taunting and criticism, the applicant has not modified the way they present to the world which was like a boy when they were a child and is now like a man. I consider that the applicant would continue to be uncompromising regarding their appearance and, to some extent, their relationship with [Ms A]. Assessing the applicant’s risk of prospective harm. I accept that if the applicant returned to Malysia with [Ms A], the applicant’s choice would be to live openly in a same sex relationship with [Ms A] although the applicant would not want to endanger [Ms A] or themselves. I also accept that if the applicant were to do this, they would be identified as a lesbian.
Given my findings (further set out below), it is unnecessary for me to address the applicant’s claim of self-harm were they to return to Malaysia, other than note that, in any event, this is generally not considered to be the type of feared harm envisaged in the protection provisions. Further, also given my findings below, it is not necessary for me to consider the applicant’s clams based on race or an implied claim based on religion.
Refugee criterion assessment
I accept the applicant fears harm in Malaysia for reasons of their sexual orientation, their masculine appearance and their committed and on-going relationship with a woman. As noted above, same-sex marriages are unlawful and adult same-sex acts are illegal in Malaysia regardless of age and consent. The Penal Code includes penalties of imprisonment of between 5 and 20 years, along with whipping. The Penal Code also provides for punishment of up to 2 years for ‘any person, who in public or private, commits or abets the commission of, or procures, or attempts to procure, the commission by any person of any act of gross indecency with another person’.
Early in 2023, PM Anwar Ibrahim stated that although the government wouldn’t condone excessive action or harassment against LGBTQIA+ people, Malaysia would never recognise LGBTQIA+ rights. In late 2023, a Minister in the PM’s Department (Religious Affairs) confirmed this stand against LGBTQIA+ activities. While framed in respect of the constitutional right to education, the Minister said the government’s approach is to raise awareness and act, helping LGBTQIA+ persons ‘to return to the fitrah (natural state) and become aware of their mistakes’. Commentators suggest that the government’s rejection of LGBTQIA+ Malaysians has emboldened conservatives and the right wing, facilitating discrimination and violence to happen unchecked against the LGBTQIA+ community. There have also been reports that online harassment and death threats against LGBTQIA+ Malaysians is prevalent on social media, and that undercover police often attend LGBTQIA+ friendly events. [25]
[25] Malay Mail, ‘Govt firmly reject LGBT but does not deny specific rights to community, says religious affairs minister’, 18 October 2023 ; Reuters, ‘LGBTQ fears grow in Malaysia as Islamists shatter reform hopes’, 21 August 2023, 20230823130304.

I have considered that the applicant is most recently from KL, which the DFAT identifies as being relatively permissive compared to other parts of Malaysia. I also note that prosecutions for LGBTQIA+ offences are usually brought under state-based syariah legislation rather than federal law. As a non-Muslim the applicant would not be subject to syariah law. Further, the Penal Code, which does apply to the applicant, has only been invoked 7 times since 1938, with 4 of those instances considered politically motivated.[26]
[26] Brought against Anwar Ibrahim.
Given that the applicant is non-Muslim, I acknowledge that there seems only a remote chance that the applicant would be prosecuted under the specific penal code provisions that relate to homosexuality. The applicant would not be subject to syariah law. However, in my view, the criminalisation of same-sex activity, the absence of non-discrimination protections as well as the Malaysian government’s anti-LGBTQIA+ rhetoric have worked to create an situation where acts of violence and discrimination against LGBTQIA+ people by members of the community can be seen as legitimised. Further, as same-sex activities are illegal, LGBTQIA+ people are unlikely to seek out or be given state protection. I consider that this contributes to an environment of fear for lesbians, particularly those of masculine appearance. Also, as I have already noted, I have accepted that the applicant experienced discriminating behaviour regarding terminating their employment in KL because of their masculinity and complaints from clients about their appearance and gender difference. While independent information indicates that LGBTQIA+ Muslim Malaysians may face more severe repercussions than non-Muslims, it also clearly indicates that trans men and masculine lesbians are potentially just as at risk. It also indicates that there may be a lack of reporting of incidents of harm and discrimination affecting trans men or women who identify as male. Further, to compound their circumstances, the applicant is in a committed and ongoing relationship with [Ms A], a Malaysian lesbian woman, which, if it were to be become known, could also bring the applicant under adverse scrutiny and possible harm.
Considering all the above, I find that that if the applicant returns to Malaysia, in particular if they were to do so with [Ms A] as their partner, they would now or in the reasonably foreseeable future, face a real chance of harm which cannot be described as remote. I find the harm could include being subjected to societal violence, harassment and other ill-treatment. Although there have been relatively few enforcements of Penal Code laws against homosexuality, given the conservatism in Malaysia, the reported incidents of adverse official and societal treatment of LGBTQIA+ people and the intolerance demonstrated to LGBTQIA+ people, I find that there is a real, as opposed to remote or far-fetched, chance of the harm occurring. I find too, that it would amount, especially considered on a cumulative basis, to serious harm.
While the applicant is most recently from KL, a relatively permissive area for LGBTQIA+ people in Malaysia, I find the applicant, particularly if they returned with their partner, would face a real chance of serious harm there as well. Even if the harm was not perpetrated by Malaysian authorities, the independent information set out above, indicates that they may be able but not willing to protect the applicant. I find the applicant would face a real chance of serious harm in all areas of Malaysia[27] and that effective protection measures, referred to in s 5J(2) and defined in s 5LA are not available to the applicant.
[27] Section 5J(1)(c).
I find that the applicant fears persecution due to being a member of the LGBTQIA+ community. For the purposes of s 5L, I find the applicant fears persecution due to being a member of the particular social group ‘lesbians of masculine appearance’ or ‘partnered lesbians of masculine appearance’ in Malaysia, and that these groups both satisfy the definition in s 5L. The applicant’s sexual orientation is a characteristic shared by each member of these groups, and the shared characteristic is not a fear of persecution. Further, the characteristic is so fundamental to the applicant’s identity that the applicant should not be forced to renounce it. I am satisfied that the applicant’s membership of either of these particular social groups is the essential and significant reason for the feared harm: s 5J(4)(a).
I am satisfied that if the applicant returns to Malaysia, there is a real chance, in the sense of one that is not remote or insubstantial, that because of the applicant’s sexual orientation and non-normative gender expression, and their committed long term and ongoing relationship with [Ms A], the applicant could face significant physical harassment, ill treatment, violence or humiliation from members of the community, online monitoring and harassment, discrimination in health care and employment which, on a cumulative basis, would amount to serious harm within the meaning of s 5J(4)(b). As this harm arises from entrenched societal and official anti-LGBTQIA+ attitudes, I am satisfied that the associated conduct is systematic and discriminatory: s 5J(4)(c). The applicant therefore meets s 5J(4).
I also find that any modification of the applicant’s behaviour to avoid harm in Malaysia would conflict with a characteristic that is fundamental to the applicant’s identity or conscience, or would conceal an innate or immutable characteristic. Therefore, the applicant cannot be required to take steps to modify her behaviour, such as by returning to Malaysia and living discreetly: s 5J(3).
For the above reasons, I find the applicant has a well-founded fear of persecution and is a refugee within the meaning of s 5H(1) of the Act.
I have also considered s 36(3) of the Act. However, based on the applicant’s evidence and other available evidence, I find that the applicant does not have a right to enter and reside in a third country. Accordingly, s 36(3) is therefore not applicable to the applicant.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Hearing: 13 December 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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
…
(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.
…