2311066 (Refugee) - [2025] ARTA 1487

2311066 (REFUGEE) [2025] ARTA 1487 (12 MAY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Christian Cifuentes
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2311066
Tribunal:General Member C Stokes
Date:12 May 2025

Place:Adelaide
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 12 May 2025 at 11:33am
CATCHWORDS
REFUGEE – protection visa – Malaysia – no response from applicant and decision wholly in favour made without hearing – particular social group – homosexual man – sexually abused by brother and forced to marry by conservative Muslim family – relationship in third country and activities and casual relationships in Australia – psychological consultations – feminine appearance and presentation but no plans to transition – lesbian sister disowned by family – country information – criminal and syariah laws – moderate to high risk of official or social discrimination – no effective protection measures and chance of persecution applies to all areas – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(b), (5), 36(2)(a), 65
Administrative Review Tribunal Act 1958 (Cth), s 106(3)(b)(i), (c),
Migration Regulations 1994 (Cth),
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 July 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 21 April 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
On 26 July 2023, the applicant applied to the then Administrative Appeals Tribunal (AAT) for review of the delegate’s decision. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
The applicant was represented in relation to the review.
The issue in this case is whether the applicant is 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 hold a protection visa of the same class.
I have considered all the information provided to the Department and the Tribunal as well as recent country information. I also understand the applicant’s representative has not been able to contact the applicant about the hearings which have been scheduled despite numerous attempts. The Tribunal has also attempted to contact the applicant directly and he has not responded. I therefore do not consider the applicant will attend the hearing scheduled on 13 May 2025 and have today cancelled that hearing.
For the reasons that follow, I am satisfied that a decision can be made wholly in favour of the applicant without hearing from the parties to the proceeding: ss 106(3)(b)(i) and (c) of the Administrative Review Tribunal Act 2024 (the ART Act). Accordingly, the Tribunal has proceeded to make a decision without holding a hearing, pursuant to s 106 of the ART Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 applicant’s migration history
The applicant is a [Age]-year-old Muslim male who first arrived in Australia in August 2018 as the holder of a UD-601 Electronic Travel Authority. He departed in November 2018 and returned in February 2019 again as the holder of a further UD-601 Electronic Travel Authority. The applicant applied for the protection visa on 21 April 2029. He has remained in Australia since February 2019.
Application to Department
In the application to the Department, the applicant claimed to fear harm because of his homosexuality. In particular, he claimed that:
a.The applicant is gay, having known since the age of 12.
b.The applicant was the victim of sexual abuse perpetrated by his brother.
c.The applicant’s family are conservative Muslims in which being gay is totally taboo. He cannot talk openly about being gay and has always kept it inside himself.
d.The applicant was forced by family to marry his ex-wife in 2014. The marriage lasted seven months.
e.The applicant had to hide his 10-year relationship with his gay partner from his family as he did not want to break their hearts and the family’s good name. This left the applicant feeling ‘so depressed’.
f.The applicant fears he will be disowned from his family for being gay, and will be verbally abused from family and friends.
g.The applicant further fears he will be forced into another arranged marriage.
h.The Malaysian authorities will not be able to protect the applicant and he cannot relocate within Malaysia as ‘LGBT is not acceptable in Malaysia’.
In addition to his protection visa application form, the applicant provided the Department with a copy of the biodata page of his Malaysian passport, a copy of the entry/exit stamped pages of his current passport and expired passport, a copy of his Malaysian national identity card (MyKad), the applicant’s travel authority to travel to Australia in 2019, a photograph of his wedding day and 2 photographs with his gay partner. He later also provided details of his family members which were not included in his protection visa application as well as a photograph of him dressed as a woman, work related certificates obtained in Australia, a tenancy agreement, his South Australian driver’s licence, and a signed statement from his [sister] [Ms A].
The applicant was invited to, and attended, an interview with an officer of the Department by video conference on 26 June 2023. The applicant was not represented during the interview and did not have an interpreter. An audio recording of the interview is included in the Department file and I have listened to the recording. The applicant claimed in the interview to be a gay man but that he felt like a girl, he liked to dress as a woman and wear makeup, and he was seeing a psychologist to help him with his trauma and accepting himself but he was not ready to transition to a full female.
Following the interview the applicant provided a number of screenshots of text messages with a man called [Mr B] and a letter dated 23 June 2023 from a psychologist confirming they have been treating the applicant since August 2022 and that he has future appointments arranged.
On 21 July 2023, the delegate refused the application for the protection visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined is ss 36(2)(a) or (aa) of the Act. While the delegate accepted the applicant is a Muslim who is attracted to men, the delegate did not accept that he was gay (being exclusively attracted to men/same gender) nor that the applicant is non-binary or identifies as a woman. After considering the country information available to the delegate at the time, the delegate was not satisfied, based on the applicant’s circumstances, there is a real chance that, if the applicant was returned to Malaysia, they will be persecuted by the state authorities including the religious authorities by reason of his attraction to men.
The delegate also considered whether the applicant would face discrimination by the wider community, including his family members which would amount to persecution, involving serious harm to the applicant. While the delegate acknowledged the applicant experienced past discrimination and been the victim of teasing and bullying for his ‘girlish’ tendencies, and there is a likelihood of him facing similar conduct upon return to Malaysia, the delegate was not satisfied this constitutes persecution involving serious harm. Further, the delegate found that any pressure the applicant may experience from remaining family members, including his sisters, to marry a woman and conform to expected gender norms, also does not raise to the threshold of serious harm as required per s5J(4)(b) of the Act.
The delegate concluded that the applicant is not a person in respect of whom Australia has protection obligations as provided for in s36(2)(a) of the Act.
The delegate also found that also find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk the applicant will suffer significant harm for any of the reasons claimed or because of their circumstances. Therefore the delegate found the applicant is not a person in respect of whom Australia has protection obligations as provided for in s36(2)(aa) of the Act.
Application to the Tribunal
The applicant applied to the then AAT on 26 July 2023. He also provided a copy of the delegate’s decision and notification letter.
On 6 March 2025, the Tribunal invited the applicant to attend an in person hearing, scheduled for 27 March 2025. On 21 March 2025, the applicant’s representative telephoned the Tribunal to advise that he had not been able to contact the applicant to advise him of the hearing and seek instructions. On 24 March 2025, the Tribunal rescheduled the hearing to 13 May 2025 and emailed the hearing invite to the representative and to the two email addresses the Tribunal had for the applicant on file. The Tribunal also sent the hearing invite to the applicant’s last known postal address via express post. The applicant did not respond to the Tribunal or representative about the rescheduled hearing. On 29 April 2025, the applicant’s representative provided the following update:
I refer to the above applicant and our previous communications.
I have been unable to reach [the applicant]. I have again tried to reach him on his phone (phone seems to be disconnected) and sent another email to the email address I have on record and which he used previously to communicate with our office. Regrettably, I have not received a response from him.
I will be posting another letter today via express post to the address I have on record...
Given the lack of contact, I consider that the applicant will not attend the hearing on 13 May 2025 and I therefore have cancelled the hearing today.
For the following reasons, I am satisfied that it is appropriate to proceed to make a decision without holding a hearing, pursuant to s 106(3)(b)(i) of the ART Act, given I have sufficient information before me to adequately determine the issues in the absence of the applicant and that the decision is wholly in the applicant’s favour.
REASONS AND FINDINGS
Country of reference
The applicant claims to be a national of Malaysia and was assessed by the Department on that basis. He travelled to Australia on an apparently genuine Malaysian passport. The departmental file contains a copy of the passport and his MyKad card. I accept the applicant is a Malaysian citizen and have assessed the applicant’s claims against Malaysia as the country of nationality and the receiving country.
Country information
I have had regard to a range of country information, including the most recent DFAT Report[1] which provides information in relation to sexual orientation and gender identity in Malaysia. The information can be summarised as follows:
[1] DFAT, Country Information Report: Malaysia (24 October 2024) (DFAT Report)
a.Malaysia is a conservative Islamic nation and is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent.[2] 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.[3]
b.Malaysian laws do not prohibit discrimination on the basis of sexual orientation, gender identity or expression and does not recognize LGBTQI+ individuals, couples, or their families. There is also no provision in law for same sex marriage or civil partnership nor are there laws for same-sex couples to adopt children.[4]
c.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. These programs are primarily aimed at Muslims.[5]
d.Successive Malaysian Prime Ministers have made anti-LGBTQIA+ statements. Malaysia’s current Prime Minister Anwar Ibrahim, elected in November 2022, stated in January 2023 that LGBTIQA+ rights would never be recognized by his administration. In-country sources told DFAT that the environment for LGBTQIA+ people had not improved under the Anwar Government.[6]
e.A report by SUARAM, an independent human rights organisation in Malaysia, notes the human rights of LGBTQIA+ and gender-diverse people continued to regress in 2023, as evidenced by a spike in censorship of LGBTQIA+ expressions, and an increase in violence including hate speech, introduction of anti-LGBTQIA+ syariah laws and expansion of conversion practices. LGBTQIA+ and gender-diverse people have reported extortion, invasion of privacy, harassment and intimidation owing to the criminalisation and regulation of LGBTQIA+ and gender-diverse people in Malaysia. At least 2 murders of trans women were also documented.[7]
f.The Human Rights Watch report on events in Malaysia for 2023 reported that Malaysian officials have targeted ‘lesbian, gay, bisexual, and transgender (LGBT) people with hateful rhetoric and crackdowns.’ It further reported that ‘State-sponsored discrimination against LGBT people remains pervasive in Malaysia, including the funding of conversion practices.’[8]
g.The US Department of State report on human rights in Malaysia for 2023 records that during that year laws criminalising consensual same-sex conduct between adults were enforced, violence against LGBTIQA+ persons was common and the police at times perpetrated and condoned such violence.[9] It further reported that in August 2023, the Ministry of Home Affairs banned rainbow-colored Swatch watches for being “prejudicial to morality” by “normalizing the LGBTQI+ movement.” The ban came after Ministry of Home Affairs officials seized more than 100 watches bearing the rainbow flag from several Swatch stores in May.[10]
h.State level religious authorities, sometimes accompanied by the Royal Malaysia Police, have occasionally conducted raids on LGBTQIA+ events and venues. In October 2022, a Halloween event attended by members of the LGBTQIA+ community in Kuala Lumpur was raided and at least 20 Muslims were arrested for cross-dressing. Malaysian NGO Justice for Sisters reported in 2022 that 24 people were being investigated for offences including: being males posing as women; ‘encouraging vice’; and ‘indecent acts’ in a public place. A gay nightclub in Kuala Lumpur and private premises have also been the targets of raids. ‘LGBTQI+ community members in other parts of the country reported similar incidents in 2022, indicating that local authorities have repeatedly attempted to disrupt LGBTQI+ events under the pretext of preventing Muslims from attending.[11] The UK Home Office assesses that Muslims are more likely to be arrested in raids and during disruption to LGBTI events than others in the community.[12]
i.DFAT 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. DFAT 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.[13]
j.While the UK Home Office in its July 2024 report on Sexual Orientation and Gender Identity in Malaysia notes Kuala Lumpur is considered more tolerant of LGBTI persons and in general it would be reasonable for a person to relocate there, it also recognises that: internal relocation will not be an option if it depends on the person concealing their sexual orientation; generally 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; and it would be unreasonable to expect a person identifying as LGBTI to seek protection from the authorities.[14]
[2] Ibid [3.126]
[3] Ibid [3.128]
[4] US Department of State, Country Reports on Human Rights Practices for 2023: Malaysia (22 April 2024) (USDOS Report) p 41; UK Home Office, Country Policy and Information Note Malaysia: Sexual Orientation and Gender Identity (July 2024) (UK Home Office Report) [7.4.1]
[5] DFAT Report [3.132]
[6] Ibid [3.129]
[7] Suaram (Suara Rakyat Malaysia), Malaysia Human Rights Report 2023 (27 March 2024), p 165-178
[8] Human Rights Watch, Malaysia: Events of 2023 (23 February 2023)
[9] USDOS report p 40
[10] Ibid 11
[11] DFAT report [3.130]; UK Home Office Report [8.4.9] and [8.4.10]
[12] UK Home Office Report [3.1.18]
[13] DFAT report [3.148]
[14] UK Home Office Report [4] and [5]
Findings of fact

Based on the documentary evidence provided by the applicant to the Department and the Tribunal, I find and accept that:
a.The applicant was born in [Year] in Johor, Malaysia. He is ethnically Malay and a Sunni Muslim.
b.His parents were Malaysian citizens but have passed way. He was one of [Number] children, with [Number] brothers who have passed away and [Number] siblings who remain alive and living in Malaysia. He is still in contact with his family regularly through Facebook and WhatsApp, but mainly with his [sisters].
c.He grew up and completed high school in Johor before studying [subject] at [University] in Pahang and then working in Kular Lumpar and [Country 1] in the [work sectors 1 and 2].
d.He has always been ‘soft and girly’, liked dressing in girls clothes and has been attracted to boys since he was 12 years old. When the applicant sees men or boys, he has special feelings toward them and wants to be treated as their girlfriend. Girls and women have always felt more like sisters to him. The applicant was very confused about his sexuality growing up as he didn’t know about homosexuality given he was from an extremely religious family and it was taboo to discuss. He was sexually abused by his older brother for many years and that has caused ongoing trauma and confusion for him about his sexuality. That brother passed away in the early 2000s due to AIDS.
e.The applicant was also bullied at school, as his personality was soft, and he would walk and talk like a girl. They called him faggot or “paddan”. He was physically bullied in school and university. At university, every night, he would be punched as they wanted to see how strong he was. When he reported that to family and family sent letter to university and the applicant was moved to another university.
f.He came to know what gay was when he was 21-years-old and working in [work sector 3]. There were [workers] that were gay, dressed up like girls, and, sold themselves on the streets at nighttime. This gave gay people a poor image and he did not want to be seen that way. He then worked for [an employer], at the age of 23 or 24, where he met lots of openly gay coworkers. After that he started to be more open about being gay towards others (but not his family) and had his first relationships. Before this he had never been in a relationship with a man or a woman. His first encounter was with a waiter he met at [a] restaurant as he was very attracted to his masculinity. The waiter gave him his number and they arranged to meet at his house where they had a sexual encounter. He liked it but was not open about it other than confiding in his housemate.
g.The applicant met his long-term male partner [Mr C] in 2009 in [Country 1]. [Mr C] was from [Country 2] and they moved there together for 1 year in 2012. They then moved to Malaysia where they lived together until the applicant was married in 2015. The applicant married a woman in 2015 after a 3-month engagement. The marriage was arranged by their families. They were married 7 months before she asked for a divorce as she suspected he could be gay and also considered he could not provide for her financially. After the divorce the applicant and [Mr C] resumed their relationship and lived together until [Mr C]’s family asked him to return to [Country 2] in 2016. Their families thought they were best friends and not a couple. They remained in a long-distance relationship with each other until around 2020 or 2021. After [Mr C] got married to a woman they have remained in contact but only as friends.
h.The only family member he has told about his sexuality is his [sister] who is a lesbian and been disowned by the family. They have shared stories of their experiences and are very close. He otherwise fears he will continue to have to hide his true self from his family given their religious views.
i.He has been in some short casual relationships with men in Australia who he has met online on a dating app. He has also joined LGBTQIA groups and activities in Australia in 2019 and 2020 – where he attended some events, but has not continued to do that given the cost. He went to a gay nightclub once with a lady friend who encouraged him to dress up as woman. He has also dressed as a woman for a man he was casually dating as he was attracted to transgender women.
j.He has been seeing a psychologist in Australia to overcome his trauma and working on accepting himself.
k.He is openly gay in his workplace in Australia (working for [Employer]). He acts like a diva and is himself. His life has changed for the better in Australia as he is able to dress as a woman and be himself in the workplace. If he were permitted to stay in Australia he would like to be an a relationship with someone to love and share a life with but it has been difficult as he is still in love with [Mr C].
l.He fears on return to Malaysia he will be pressured to marry a woman but his family and that he will not be able to be himself and will need to live a lie. He does not consider he will be able to be himself anywhere in Malaysia given LGBTQIA people are not accepted anywhere.
Does the applicant satisfy the refugee criterion for protection?
I accept the applicant identifies as homosexual and has been same-sex relationships in Malaysia and Australia. I am satisfied that if the applicant returned to Malaysia, that he would wish to engage in same-sex relationships. I am satisfied that he does not believe he will be able to live safely in Malaysia as a homosexual who wants to be able to openly be in a relationship with a same-sex partner, attend LGBTQI+ events and dress in female clothes. I am satisfied that the applicant fears discrimination, harassment and punishment by society and the authorities in Malaysia if he were to do so.
Based on the country information outlined above, I accept the impact may be more pronounced for the applicant as a Malay Muslim homosexual man. Further, I accept the applicant is more vulnerable because he does not conform to gender norms and his sexuality is visible due to the way that he presents himself. Consistent with the applicant’s experiences since he was a young child in his community, people in Malaysia perceive or ‘suspect’ the applicant to be homosexual based on his feminine appearance and the way he carries himself. He has also explained that since living in Australia he is now openly effeminate and behaves like a ‘diva’. His homosexuality is therefore visible to others and cannot be readily concealed or hidden. While he is not at the same risk as a transgender man or woman, his sexuality is visible, and he is more vulnerable than other gay men might be in Malaysia.
I am satisfied, if the applicant were to return to Malaysia, there is a real chance the applicant would face societal and official discrimination, harassment, social and familial exclusion and societal violence. I am satisfied this treatment includes significant physical harassment and would amount to serious harm for the purposes of s 5J(5) of the Act.
I also consider, based on the country information outlined above, the persecution feared involves systematic and discriminatory conduct.[15] I further find that the Malaysian State is not willing to offer effective protection measures to the applicant[16] in any part of Malaysia and therefore find that the applicant faces a real chance of persecution throughout all areas of Malaysia. [17]
[15] Migration Act 1958 (Cth), s 5J(4)(c).
[16] Migration Act 1958 (Cth), s 5J(2) and 5LA.
[17] Migration Act 1958 (Cth) s 5J(1)(c).
I find that Muslim homosexual men in Malaysia are a particular social group for the purpose of assessing the applicant’s fear of persecution.[18] The applicant is a member of that particular social group. I consider that the group of ‘Muslim homosexual men in Malaysia’ is identifiable by the characteristics of sexual identity and nationality and that the common characteristics or attributes are not a shared fear of persecution. I find that his membership of this social group is the essential and significant reason for the harm feared by him.[19]
[18] Migration Act 1958 (Cth) s 5J(1)(a).
[19] Migration Act 1958 (Cth), s 5J(4)(a).
I have accepted that the applicant wishes to be open about his sexuality. I have also accepted that people readily perceive him to be homosexual due to his appearance and the way he carries himself. This may make it impossible for him to conceal or hide his identity or to change this perception to mitigate risks he may face. In any case, I accept that if the applicant was to conceal his sexual identity from his family or society, he would be doing so to avoid the threat of serious harm. The applicant cannot be expected to conceal or alter his sexual orientation, or to modify his behaviour to avoid persecution as it would require the applicant to modify a fundamental characteristic of his identity and conceal an innate or immutable characteristic and his true sexual orientation and/or gender identity.[20] I am satisfied that there is a real chance of persecution if the applicant were removed to Malaysia now and in the reasonably foreseeable future (given the deteriorating conditions and environment for Muslim homosexual men in Malaysia).
[20] Migration Act 1958 (Cth), s 5J(3)(c)(vi).
While I consider it possible that the applicant could live in Kuala Lumpur as he has done in the past rather than return to Johor, and Kuala Lumpur is generally more accepting of gender and sexual diversity than other parts of Malaysia, I consider there to be a real chance of him being persecuted there given the country information and my findings at [32] above.
Accordingly, I find that the applicant has a well-founded fear of persecution for reason of his membership of a particular social group. The applicant therefore satisfies the meaning of ‘refugee’ set out in s 5H(1) of the Act and is a person in respect of whom Australia has protection obligations under s 36(2)(a).
I have found above that the applicant is a Malaysian national and it has no evidence that he has a right to enter any other country. For completeness, I find the exception for persons with third country protection rights in s 36(3) does not apply.
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 Act.
Date of hearing:         N/A
Applicant’s Representative:           Mr Christian Cifuentes
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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