2317142 (Refugee)

[2024] AATA 1515

2317142 (Refugee) [2024] AATA 1515 (1 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Hannah Dickinson

CASE NUMBER:  2317142

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Alison Murphy

DATE:1 February 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 01 February 2024 at 2:35pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – gender identity – non binary/ Genderqueer – sexual orientation – pansexual/Queer – particular social group – LGBTQI+ community in Malaysia – future risk of harm – moderate risk of official and societal discrimination – exacerbated by Muslim religion – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 431 and 440 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant’s preferred they/she pronouns are used throughout this decision record.

3. [Details redacted].

4. [Details redacted].

5. [Details redacted].

6. The applicant appeared before the Tribunal on [date] to give evidence and present arguments.

7. The applicant was represented in relation to the review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to 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, the applicant 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.

9. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

10. Australia is a party to the Refugees Convention and, generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

11. If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of a protection visa if they are 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 the applicant being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

12. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

13. The issue in this case is whether the applicant 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.

14. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Country of nationality

15. There is no dispute that the applicant is a citizen of Malaysia. The Tribunal finds accordingly and has assessed the applicant’s claims against Malaysia as the receiving country.

16. [Details redacted].

    Assessment of claims

17. The applicant claims to fear persecution in Malaysia on the basis of their gender identity and sexual orientation, as a victim-survivor of family violence and as the child of a whistle‑blower who has been found to be owed protection under s 36(2)(a) of the Act.

18. While the applicant’s claims to fear harm as the child of a whistle-blower were raised before the delegate and earlier Tribunals, their claims concerning their gender identity, sexual orientation and family violence were not. In this case, the Tribunal is satisfied there is a reasonable explanation as to why those claims were not raised earlier.

19. Firstly, the applicant was a child at the time the visa application was made and the grounds now relied upon had not yet crystallised. Secondly, cultural and religious restraints placed upon the applicant by their family, school and the Islamic community meant that articulating or even disclosing their claims was unsafe while they remained living in the family home and joined to the family’s visa application.

20. For the reasons that follow, the Tribunal accepts the applicant has a well-founded fear of persecution in Malaysia for reasons of their gender identity and sexuality.

    The applicant’s personal background

21. [Details redacted].

22. [Details redacted].

23. [Details redacted].

24. [Details redacted].

    The applicant’s sexual orientation and gender identity

25. The applicant was identified as female at birth, but now identifies as non‑binary/ Genderqueer and uses the pronouns they/she. They identify their sexual orientation as pansexual/Queer.

26. The applicant grew up in a devoutly Islamic family who only accept heterosexual relationships and do not accept genders other than those assigned at birth. Homophobic views were prevalent within the family and replicated in their Islamic school and their community. From the time they were a young teenager, they have dealt with social pressures and expectations around marriage both at school and at home. At the same time they developed an awareness that they were sexually attracted to women and have a gender identity different to that assigned to them at birth. They believed their teachers and family who talked about such people as being sick and mentally ill.

27. The applicant finished high school in 2018. They were unable to work or continue studying because of their visa conditions and found life very difficult. While they volunteered with [various organisations], they never spoke to anyone about their gender identity or sexual orientation. They started attending counselling in 2020 and seeing a psychologist in 2023 and spoke to people for the first time about their Queer identity.

28. They continue to identify as a Muslim, believing in God, charity and prayers. They no longer believe that homosexuality is a sin or in the strict segregation of the sexes. They have found a Queer Muslim community in which they practise their Muslim faith by praying and fasting.

29. They moved out of home in 2023 in the context of family violence and began their involvement in Queer-friendly communities. Charitable organisations supported them with accommodation and food. They initially used the pronouns she/they, being unsure whether they could safely use they. Support workers introduced them to Queer programs, including [Program 1], a community program supporting and connecting Queer people of colour. They undertook Queer and trans-friendly self-defence class and became involved in Queer theatre productions.

30. The applicant’s psychologist, [Dr A], confirms in a letter dated [date] that he consulted with the applicant during 2023 in relation to their experience of family violence, resulting in the applicant being provided with alternative accommodation through [Organisation 1]. A letter from [Ms B], team leader at [Organisation 1] dated [date] records that organisation assisted the applicant after they became homeless as a result of family violence. [Ms B] confirms the applicant is known to them as a member of the LGBTIQA+ community and that they are not accepted by their family or community because of their sexual orientation and gender identity. The applicant is also a member of [named service] at [Organisation 1].

31. Similarly, the applicant’s caseworker from [Organisation 1], [Ms C], advises that organisation has provided the applicant with financial support and housing as well as foodbank and referrals to services and programs. She states the applicant identifies as LGBTIQA+ and was very shaken after leaving the family home where they were not accepted because of their gender identity and sexual orientation. Other correspondence from [Organisation 1] and [named service provider] confirms the applicant has received services and support from those organisations through various LGBTIQA+ services.

32. The applicant is currently involved in a theatre production produced by [Company 1] featuring members of the Queer community, attending workshops and rehearsals. That production is due to be performed in [month and year] and the applicant will participate in a specially designed costume reflecting their journey as a Queer asylum seeker. [Dr D], producer and director of [Company 1], confirms the applicant is a talented artist and performer; a well-respected member of the LGBTIQA+ community in [specified area] of Melbourne and a valued member of their Queer family (letter dated [date]).

33. The applicant would like to be in an intimate relationship, but to date their visa restrictions, straitened financial circumstances and concerns about their safety within their family unit and Islamic community have prevented them from doing so. They have never spoken of their gender identity or sexual orientation to their parents and siblings, but suspect they may have some idea because of their appearance and conduct. They think their parents pressured them to marry more than they pressured their sister and this may be because they suspect they are different. They have minimal ongoing contact with their parents and siblings since leaving home and no ongoing contact with their extended family in Malaysia.

34. In view of the evidence before it, the Tribunal accepts the applicant’s gender identity is non‑binary/Genderqueer and their sexual orientation is pansexual/Queer. The Tribunal accepts that the applicant has minimal contact with their family in Australia and extended family in Malaysia for fear of them finding out about their gender identity and sexual orientation, but that they otherwise live openly as a member of the LGBTIQA+ community in Australia. The Tribunal accepts that to be a characteristic that is fundamental to their identity and conscience and that they are identifiable as such by their appearance, their pronouns and their participation in the LGBTIQA+ community including at public events such as theatre productions and workshops.

    Future risk of harm

35. In assessing the applicant’s claims to fear harm in Malaysia, the Tribunal must consider the risk of harm to the applicant in the reasonably foreseeable future and this assessment is a forward‑looking test.

36. The applicant fears that if returned to Malaysia, they will be forced to hide their gender identity and sexual orientation from their family, state and religious authorities or face serious harm. They argue that the Malaysian authorities actively punish members of the LGBTIQA+ community, particularly when they are also Muslim Malays, and that the state authorities both tolerate and encourage the targeted harm of members of the LGBTIQA+ community from the wider public. They fear that if they are returned to Malaysia, they will be forced to marry a man against their wishes.

37. DFAT reports that Malaysia is a conservative Islamic nation in which there is ‘widespread official and societal disapproval of LGBT identities and behaviour’. Adult same-sex acts are illegal regardless of age and consent and punishable by prison sentences and whipping. State level syariah based laws prohibit both same-sex relationships and non‑normative gender expressions. Transgender women have been arrested on public indecency and immorality charges as well as under syariah based laws for impersonating women and transgender people are not generally allowed to change their name or sex marker on their identity cards. DFAT reports that in 1983 the National Fatwa Council banned Muslims from undergoing sexual reassignment surgery which, along with transition therapy, is not available in Malaysia in any case.[1]

    [1] Department of Foreign Affairs and Trade 2021 DFAT Country Information Report: Malaysia 29 June 2021 at 3.134–3.135

38. Malaysia’s former Barisan Nasional Government was strongly opposed to the ‘promotion’ of LGBTIQA+ issues, developing a five-year plan to address ‘social ills’ focusing on the LGBTIQA+ community. That plan included rehabilitation and prevention plans for LGBTIQA+ individuals and the enforcement of laws and policies prohibiting the promotion of LGBTIQA+ lifestyles.[2] In 2017, the federal government’s Islamic Development Department endorsed and promoted ‘conversion therapy’, organised by State officials and aimed at transgender women.[3]

    [2] Department of Foreign Affairs and Trade 2021 DFAT Country Information Report: Malaysia 29 June 2021 at 3.134–3.135

    [3] ILGA World State Sponsored Homophobia 2019 13^th edition at p 272

39. Despite the change of government in 2018, DFAT reports that LGBTIQA+ issues remain sensitive and members of the Malaysian Government continue to criticise, exclude and discriminate against lesbian, gay, bisexual, transgender and intersex persons.[4] Other sources confirm that the 2018 election has not translated to progress on sexual orientation and gender identity issues:

    ·In September 2018, the newly elected Prime Minister Mahathir Mohamad responded to the recommendation by the country’s National Human Rights Commission (SUHAKAM) to repeal laws that discriminate against the LGBT community by stating that the country cannot accept LGBT culture or rights such as same-sex marriage, dismissing them as ‘Western’ values. Later in the same month he stated that ‘we are a Muslim nation, and we do not tolerate sodomy. The rest of the world may tolerate it, but we cannot. That is against our religion’. Shortly afterward, the opposition leader Datuk Seri Ahmad Zahid Hamidi attributed an earthquake that took place in Indonesia to LGBT activities there, warning that ‘we need to ensure that Malaysia and those who are against LGBT are spared Allah’s punishment’;[5]

    ·In 2022, Amnesty International reported that LGBTIQ+ people continued to face systemic persecution and discrimination in Malaysia in both law and practice, citing instances of the authorities censoring cultural content deemed to have ‘LGBT elements’, raids of LGBTIQ+ events resulting in the detention of trans people and performers in drag for violating Islamic laws against cross-dressing and amendments to sharia laws banning ‘women posing as men’;[6]

    ·In 2023, the United Nations reported that the Malaysian Penal Code continued to criminalise consensual same-sex relations, imposing a sentence of 20 years in prison and mandatory whipping, and ‘that hateful rhetoric and discriminatory laws had led to a rising tide of incitement to discrimination, hostility and/or violence towards LGBTIQ+ persons’ who also continue to face various forms of bullying and intimidation that hindered their access to medical and health care;[7]

    ·In 2023, the LGBTQI+ community in Malaysia reported they were facing increasing scrutiny and discrimination under Prime Minister Anwar Ibrahim’s government, despite his reputation as a progressive reformer. It is reported that the Prime Minister is under pressure to bolster his Islamic credentials in the face of an increasingly popular ultra-conservative opposition bloc which includes Islamist party PAS, which promotes a strict interpretation of sharia law and opposes LGBTQI+ rights. The current Prime Minister Anwar Ibrahim’s government has banned books promoting LGBTQI+ lifestyles, detained demonstrators expressing support for their rights and confiscated Pride‑themed watches made by Swatch;[8]

    ·In 2023, Human Rights Watch reported that state-sponsored discrimination against LGBTQI+ people remains pervasive in Malaysia, with state and federal syariah based laws criminalising both same-sex activity and gender nonconformity. It reports that in January 2023, Prime Minister Anwar rejected the idea that LGBTQI+ Malaysians would be recognized and protected under his government, saying: “These politicians will say that if Anwar becomes prime minister … LGBT will be recognized. This is a delusion. Of course, it will not happen.” [9]

    [4] Department of Foreign Affairs and Trade 2021 DFAT Country Information Report: Malaysia 29 June 2021 at 3.136

    [5] ILGA World State Sponsored Homophobia 2019 13^th edition at p 129, 452

    [6] Amnesty International Report 2022/23; The State of the World's Human Rights; Malaysia 2022

    [7] UN Human Rights Council Malaysia Compilation of information prepared by the Office of the United Nations High Commissioner for Human Rights 13 November 2023 A/HRC/WG.6/45/MYS/2

    [8] Latiff R and Ananthalakshmi A, LGBTQ fears grow in Malaysia as Islamists shatter reform hopes | Reuters 21 August 2023

    [9] HRW – Human Rights Watch (Author): World Report 2024 - Malaysia, 11 January 2024  

40. DFAT reports that transgender individuals are particularly vulnerable to raids by religious authorities and subsequent placement in re-education centres where they are subjected to physical or sexual violence and degrading treatment. Transgender individuals are also vulnerable to violent attacks by members of the broader community. DFAT reports that in 2021, Nur Sajat, a high-profile cosmetics entrepreneur and transwoman, was charged in the Shah Alam Syariah High Court with dressing up as a woman at a religious event three years earlier and bringing Islam into contempt. She pleaded not guilty to an offence that carries a penalty of up to three years’ imprisonment and was arrested by the Selangor Islamic Religious Department in an allegedly violent fashion. In February 2021, she went into hiding following her failure to appear in court. She has since been granted protection in Australia.[10]

    [10] Department of Foreign Affairs and Trade 2021 DFAT Country Information Report: Malaysia 29 June 2021 at 3.145; Malaysian transgender entrepreneur Nur Sajat fled her home, family and business in fear for her life. Now she's safe in Australia – ABC News

41. Overall, DFAT assesses that LGBTQI+ individuals in Malaysia face a moderate risk of official and societal discrimination, which may include being subjected to prosecution, ‘re‑education’, exclusion from public spaces and employment opportunities, and/or familial or societal violence. DFAT identifies that the risks are higher for Malay/Muslim LGBTQI+ individuals, for transgender individuals, and for LGBTQI+ individuals located in poorer and rural areas.[11]

    [11] Department of Foreign Affairs and Trade 2021 DFAT Country Information Report: Malaysia 29 June 2021 at 3.147

1. It is well established that persons of non-normative gender identity and/or sexual orientation in a given country can constitute a particular social group.[12] Having accepted that the applicant is of non-conforming gender identity and sexual orientation, the Tribunal accepts that on return to Malaysia they will be a member of the particular social group comprising the LGBTQI+ community in that country. The Tribunal further accepts that the applicant’s risk of harm as a member of that group is exacerbated by their Muslim religion and their non‑normative gender identity.

   [12] Applicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.

2. In these circumstances, the Tribunal accepts the applicant faces a real chance of serious harm in Malaysia for the essential and significant reason of their membership of the particular social group comprising the LGBTQI+ community in Malaysia. That harm includes but is not limited to exposure to criminal charges under federal and state based syariah laws, forcible participation in re-education centres where they may be subjected to physical or sexual violence and degrading treatment and other acts of discrimination and/or violence capable of constituting serious harm. The perpetrators of that harm include the Malaysian authorities and members of the broader Malaysian community.

3. The Tribunal finds that any modification of the applicant’s behaviour to avoid a real chance of persecution in Malaysia on the basis of their gender identity and sexuality would conflict with characteristics that are fundamental to their identity or conscience, and would be undertaken only to avoid the threat of serious harm that would follow from living openly as a person of non-conforming gender identity and sexuality in Malaysia. The applicant is not required and cannot be expected to take steps to modify their behaviour so as to conceal their gender identity and sexuality in order to avoid the feared persecution.

4. As one of the perpetrators of harm in this case is the Malaysian state, the Tribunal accepts that state protection is not available to the applicant and the real chance of persecution relates to all areas of Malaysia.

5. For these reasons, the Tribunal accepts the applicant has a well-founded fear of persecution for reasons of their membership of the particular social group comprising the LGBTQI+ community in Malaysia if they return to that country, now or in the reasonably foreseeable future. It follows that the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   THIRD COUNTRY PROTECTION

6. Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by ss 36(3), (4), (5) and (5A) of the Act. Section 36(3) provides that where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if they have not availed themself of that right, unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply. Sections 36(4), (5) and (5A) apply where the applicant has a well-founded fear of being persecuted or a real risk of suffering significant harm in the third country, or a well-founded fear of being returned to another country where they will be persecuted or there would be a real risk of them suffering significant harm.

7. Nothing in the material before the Tribunal indicates that the applicant has a right to enter and reside in any third country apart from Australia. It follows that s 36(3) does not apply in the circumstances of this case.

   CONCLUSION

8. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).

   DECISION

9. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

   Alison Murphy
   Member