2419478 (Refugee) [2025] ARTA 1550 (22 May 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2419478
Tribunal: General Member R Hampson
Date: 22 May 2025
Place: Brisbane
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets s 36(2)(a) of the Migration Act.
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – Islam – particular social group – LGBTI persons – Muslim lesbians living in Malaysia – first protection visa application deemed invalid – not allowed to have a dual citizenship under Malaysian law – study loan debt – fear of forced marriage – pictures corroborate an intimate same sex relationship – LGBT rights illegal – fears up to 20 years imprisonment with caning and fines – Muslim law is the same throughout Malaysia – mental health – depression – real chance of persecution – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 91N, 91P, 91Q, 369, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
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[1] (the delegate) on 2 June 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] This is now the Minister for Immigration and Multicultural Affairs.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant who claims to be a national of Malaysia, applied for the visa (the subject of this review) on 31 January 2024. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant was granted a Bridging Visa (class WE) (bridging E (General)(subclass 050) with no permission to work or study on 5 February 2024 and this was revised on 29 February 2024 with permission to work granted.
The applicant made a request for a review of this decision to the Tribunal on 25 June 2024.
The applicant appeared before the Tribunal via MS Teams video on Monday 31 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter who appeared via MS Teams video in the Malay and English languages.
On Tuesday 13 May 2025 a resumed hearing was conducted with the applicant via MS Teams video and with the assistance of an interpreter who appeared via MS Teams video in the Malay and English languages.
At this resumed hearing the Tribunal also heard from a witness [Friend A] a college friend of the applicant who resides in Malaysia. The witness spoke English and the Interpreter was not required but available for the witness.
The issue in this matter is whether the applicant is a person in respect of whom Australia has protection obligations.
BACKGROUND
The applicant claims to be a [Age] year old national of Malaysia.
The applicant claims she was born in Kota Kinabalu, Sabah, Malaysia, and her ethnicity is Malaysian and her religion is Islam.
The applicant arrived in Australia as the holder of an Electronic Travel Authority (subclass 601) [in] October 2019.
The applicant provided a copy of the biodata page of their Malaysian passport as part of her protection visa application. The delegate accepted that the applicant is a citizen of Malaysia and there is no information before me to the contrary. I find that the applicant is a citizen of Malaysia, and that Malaysia is her receiving country for the purposes of assessing her claims for protection.
Protection Visa application history
Protection visa application lodged in2019 (the first application)
The applicant initially lodged a protection visa application on 4 December 2019, [a number of] weeks after her arrival in Australia. She then made a notification of change of circumstances to this initial application on 8 December 2019. The applicant claimed in this first application dated 4 December 2019 that she left her home country because of an ‘economy problem’, that she ‘can’t afford living there’ and ‘expenses are too high’ and that ‘can’t even afford to continue my study’ and ‘salary is not enough to pay by my study loan’.
On 8 December 2019, the applicant submitted a notification of change of circumstances to the Department stating,
‘I decided to live in Australia because of my same gender preferences. This practice is not allowed or a big taboo at my current country (Malaysia). Currently me and my partner trying to get a place where we get accepted by the community and live free. Thank you.’[2]
[2] The applicants first protection visa application dated 8 December 2019.
On 9 January 2020, the applicant completed the application and identification test details for photograph and fingerprint checking.
On 22 March 2021, the delegate wrote to the applicant requesting further information regarding her Malaysian citizenship. As the applicant had listed her father as a Malaysian citizen and her mother as a [Country 1] national, she was required to provide proof of her parents’ birth, marriage, passports, and citizenship along with her own birth certificate and citizenship of Malaysia and all her expired and current passports. The applicant subsequently provided all evidence as requested.
On 15 June 2021, the delegate again wrote to the applicant requesting further information if she had claims for protection to raise against [Country 1] and to provide details and supporting documentation.
On 28 June 2021, the delegate wrote to the applicant informing her that her application for protection was invalid as she is a national of two or more countries and her application is affected by sections 91N and 91P of the Act. This letter noted that the Minister has power under s91Q of the Act to determine if s91P does not apply and allow the application.
The applicant responded to this letter on 18 July 2021 stating that she is a Malaysian citizen and as such she is not allowed to have a dual citizenship under Malaysian law. A delegate responded on 20 July 2021 stating this information will be considered.
The applicant applied for ministerial intervention on 29 November 2022 as she claimed her mother is a [Country 1] national, is married to a Malaysian citizen and the applicant is born in Malaysia and as such she does not have dual citizenship. This was subsequently investigated and she was notified on 4 July 2023 that the Minister has no power to intervene in the matter as section 91P of the act was removed and as such decided that whilst her previous protection visa application was deemed invalid, she may lodge a new protection visa valid application if all other validity criteria were met.
This initial 2019 application was not included in the Department decision record of 2024 presumably because it was deemed invalid. Upon establishing the existence of this application, I requested it from the Department to establish consistency of claims between it and the 2024 application discussed below commencing in paragraph 24.
Evidence before the Department
Protection visa application of 2024 (the second application)
On 31 January 2024, the applicant made a second and new protection visa application to the Department.
In this application the applicant claimed that she had left Malaysia because she preferred people of the same gender and practicing this is a big taboo in Malaysia. She further stated she is trying to build a new life in a community where she is accepted and does not have to hide who she is. She further stated she left Malaysia because she has a student loan that she cannot afford to pay if she continues to work in Malaysia with the small amount of salary and the high cost of living expenses there. She said, ‘in the future I would like to study, it impossible for me to study in Malaysia with my loan that I haven't settled it yet and it keeps increasing with the interest every month.’[3]
[3] Applicants Protection visa application dated 31 January 2024.
She stated she feared harm if she were to return to Malaysia as it is a Muslim country and she would be arrested and sentenced if she was caught because of her sexuality. She fears she will suffer there because she will be mentally abused because of her sexuality. She fears the stress she will suffer because of the bad economy and she cannot have a good life there and would always have to work and would not be able to further her study.
She also fears her parents will force her to marry because of her sexuality. She believes this is a cultural issue that no one can protect her from as if parents agree on a marriage, then it is considered a valid marriage.
Supporting documents
The applicant provided registered copies of her passport and her national identification registration card with her application.
Interview with delegate
The applicant was not offered an interview with the delegate.
Delegates request for further information
The delegate sent the applicant a letter on 28 April 2024 requesting further information and a list of questions for her to answer. The applicant responded to this request on 25 May 2024. Below is an extract from the applicant’s responses to the delegates questions:
When did you first realise you were attracted to women? How old were you?
When I was 6, I liked this one girl in my kindergarten. She was beautiful and nice,but I thought it just a natural feeling to like/adore someone beautiful. I didn’t know if
it’s a crush or no at that time. At the age of 11 years old, when I was in primary
school, I realised I was attracted to women when I saw a girl from another school. At
that time I knew the feeling that I am different because I never attracted to the
opposite gender. I always wanted to see the girl that I have a crush on whenever my
school bus come to pick up another kids from the other school.How did you feel about being gay in Malaysia?
I feel depressed, stress, no voice, and not safe being a gay person in Malaysia. I
can’t be myself or coming out of the closet if I continue living there. I still being careful
about my sexuality in Australia, but at least I know I will be safe in Australia if anyone
(Homophobic) person know about me.Have you been in any same sex relationships?
Yes, I have been in relationship with some women in Malaysia. I have met some
women in Australia, but it’s not a relationship, we just hanging out without any string
attached.(The applicant provided a list of ex partners) including [Partner A] who she stated she met in a [Social media 1] group and was a senior at her [college] in Kota Kinabalu in Malaysia when the applicant was [studying] there. She stated they broke up on a mutual decision as there was ‘no chemistry.’ This relationship was in 2012. The applicant provided 6 photographs of herself and another female hugging and sitting together.
The applicant provided details of a second relationship with [Partner B] whom she was introduced to through her ex-partner [Partner A]. This person was also a senior at her college and the applicant was a [student] there. This relationship was in 2012 and the couple separated as [Partner B] ‘cheated on me’. The applicant provided 5 photos of herself with a female person.
The applicant provided details of another relationship with [Partner C] who was her partner from 2012 to 2014. She said they met in a [Social media 1] group and it was a long distance relationship as [Partner C] lived in Sarawak state and the applicant lived in Sabah state. The applicant said this relationship broke down as [Partner C] was ‘cheating on me.’ The applicant provided the delegate with untranslated copies of messages between the two including face snapshots.
Have you told your family about your sexuality? If so, could you describe what happened in detail?
Yes, at the age of 16, I did tell my brother about my sexuality, that I liked this 1 girl from another school. I was in high school at that time. My brother told my mom about my sexuality behind my back.
How did they respond?
My brother didn’t like it and told my mom. My mom got furious and angry at me. I remember she slap my body and ask me if it true. I want my mom to understand me and hoping she will accept me so I just said it’s true. She then get more angrier and hitting my hand, she just keep asking me “WHY??” “WHY CAN’T YOU LIKE BOYS?.” I remember I was so disappointed, sad, angry, and I so scared at that time. I don’t want to be in a lot of trouble so I just said, “I don’t trust men.” After that me and my mom not very close anymore. I don’t share anything with my family anymore.
Have you told your friends about your sexuality? If so, could you describe what happened in detail?
Yes, I did told some of my friends. Just the close friends and some gay friends that know about my sexuality.
How did they respond?
They are supportive.
Have you met other LGBT persons in Malaysia? If so, how did you meet them?
Yes, I did met some LBGT person in Malaysia. I have a lot of gay friends when I was in college. So, a gay person would tell another gay person that I am one of the Lesbian in my school. I also join a Lesbian Private group in [Social media 1]. I mostly make friends on the group and meet my ex-girlfriends there.
How are other people you know who are gay treated in Malaysia?
Some people were treated badly. For example, been called by bad name. I know someone who is homophobic and she think my Lesbian friend is dangerous just because my friend told her that she is gay. Some of the people think that we are a pervert/threat just because we like someone with the same gender. The applicant provided links to news articles.
Have you became involved within the LGBTI community since arriving in Australia? For
example, with social media, advocacy groups or clubs. If so, could you provide how did you
find out about the group?I have been trying to find someone that I like/interested with, and some LGBT friends in Australia from the apps [App 1] and [App 2]. I have made some friends from LGBT community on [App 1]. Also, meet someone from [App 1] but it was just a casual thing/not a relationship just for a short time. I never meet anyone on [App 2], it’s mostly just scammer in there. Just searching them on [Social media 1].
How often do you meet with the group, what other activities do you take part in with them, and where are the group/s located?
I never meet with someone from the group, because most of them far away, so I never interacted with them. I never take part of the activities in the group. Australia
Did you practice a religion Islam in Malaysia? If so, do you still practise this religion in Australia?
Yes, I practise Islam in Malaysia, but not much, as I’m not a religious person. I was living with my family, my parents is a religious/pious person. They want us to pray and practise the religion. I’m not a religious person. Honestly, I forgot how to pray now because I haven’t practise (pray) in a long time. But I still respect the religion and sometimes I still doing fasting on Ramadan.
Does your sexuality conflict with your religion? If so, how?
Yes, in Islam it’s consider as a big sin.
Have you had any negative interactions with the authorities in Malaysia due to your being
gay? If so, could you provide details.No, I haven’t had any interactions with any authorities in Malaysia. I’m not very open about my sexuality to anyone. When I was 16, in high school. One of my friends tell my other classmate that I have a crush on one of the girls in our class. The news spread so fast in our classroom. The girl didn’t like it, I have been mocked for liking someone that have a same gender as me. I couldn’t bear the mocking, it’s embarrassing and draining my energy mentally thinking about it. So, I tell the girl that it just a rumour, it’s not true. Then I pretend to like boys to protect myself, and never talk about my sexuality to other people that I can’t trust.
Did you attempt to hide your sexuality in Malaysia? If so, how?
Yes, I was very careful to speak about my sexuality and tried to hide it from people e.g. Family/Relative, Friends, Co-worker, Classmate. Basically, everyone but my gays and good friends that doesn’t really mind about other people sexuality.
What are the persons or organisations (specific persons, government agencies and/or
groups) that you fear harm from if you return to Malaysia?There is no legal protection for LGBT individuals. Malaysia Government itself make the rule it’s illegal to be part of the LGBT. LGBT Rights is illegal in Malaysia since 1871.
What are the details of the harm that you fear you will suffer if you return to Malaysia?
If I get caught, I will be sent to prison. - Up to 20 years imprisonment with caning and fines. Muslim citizens may also be additionally charged in an Islamic court under Sharia, and foreigners may be deported.
You have stated that you cannot relocate within Malaysia. Explain why you cannot relocate
within Malaysia to Kuala Lumpur?Kuala Lumpur and all the other state are ruled by the same Government. The rules is subject to all state in the country of Malaysia.
The applicant also provide the delegate with the following submissions:
·[Social media 1] screenshots of Lesbian groups, screenshot of list of groups they claimed as joined.
·Loan details dated 6 March 2022 – untranslated.
·Loan details dated 6 March 2022 – translated.
·Loan details 2 dated 6 March 2022 – untranslated.[4]
[4] Delegates decision record dated 2 June 2024.
The delegate had the following concerns as detailed in their decision record dated, 2 June 2024. The loan details indicated that the outstanding balance is [amount]RM as per March 2022, but had not shown the due date or indicated any overdue amount.
The photos indicated that the applicant was with some women but did not establish they were in a same-gender relationship.
The screenshots indicated that there were some Lesbian [Social media 1] groups but they did not prove that the applicant participated in those groups.’[5]
[5] Ibid
The delegate stated in their findings,
‘having regard to the definition in s 5L, I find that applicant’s circumstances would give rise to the meaningful formulation of a PSG, namely ‘LGBTIQ+ persons in Malaysia’. This PSG consists of persons who share cognisable characteristics, being their gender and sexual orientation, which are innate, unchangeable, and essential to their identity, and set them apart from society at large. I therefore accept that applicant is member of this PSG. In accordance with s5L of the Act, I am satisfied that ‘LGBTIQ+ persons in Malaysia’ is a particular social group’[6].
[6] Delegates decision record, dated 2 June 2024, page 4.
The delegate however after assessing country information made the following findings,
‘The applicant fears harm from people in the community and the Malaysian government who are anti-LGBTIQ+. I acknowledge that Malaysians who identify as LGBTIQ+ individuals may face forms of discrimination and harassment in the community and in their interactions with the Malaysian authorities. I am not satisfied that the extent and seriousness of any discriminatory behaviour, however unpleasant would be sufficiently serious to reach the threshold of serious harm or persecution. The information before me also does not suggest the applicant would be harassed, physically harmed, or otherwise mistreated by any individual or group, or that there is a real chance they would be targeted by the authorities in Malaysia on the basis of their sexual orientation in the foreseeable future.
While I acknowledge the applicant may experience some societal and official discrimination and that the societal environment there may not be as liberal as it is in Australia, I am not persuaded the less-than- liberal environment or the extent of discrimination that the applicant may experience alone in Malaysia would reach the threshold of serious harm and persecution. I further note that DFAT observes that LGBTIQ+ civil society organisations are generally able to operate and offer services to their communities in Malaysia unhindered. While I acknowledge the support offered by LGBTIQ+ groups may be limited depending on where the applicant lives, there is no evidence before me to demonstrate that the applicant would not be able to access numerous organisations and support groups in Malaysia should they require community support on any issues relating to marginalisation based on their sexual orientation.
It has been submitted the applicant felt they could not freely express their sexual orientation in Malaysia. In considering the country information above, while I acknowledge the applicant may feel aggrieved at being restricted or curtailed in how freely they may be able to express their sexual orientation in Malaysia, I do not find the pressure to conform to societal expectations to amount to serious harm.
There is no information before me suggesting the applicant has ever engaged in any form of public activism on any issue or that they hold, or has held, any public profile in Malaysia. The evidence before me does not suggest they would engage in public activism on LGBTIQ+ or civil rights on return to Malaysia in the foreseeable future either. There is no evidence before me to demonstrate the applicant will be of adverse interest to the Malaysian government or authorities upon their return to Australia due to their having any political profile or LGBTIQ+ related activism.
Finding
I am not satisfied that [the applicant] is a refugee as defined in s5H(1) of the Act. Accordingly, I find [the applicant] is not a person in respect of whom Australia has protection obligations as provided for in s36(2)(a) of the Act.
As I am not satisfied that [the applicant] is a refugee as defined in s5H(1) of the Act, an assessment in relation to s5H(2) of the Act has not been made’[7]
The delegate then considered the criteria for complementary protection and found the applicant, in their view, was not a person to whom Australia owed protection obligations under s 36(2)(aa) of the Act.
[7] Delegates decision record date 2 June 2024.
Evidence before the Tribunal
Pre-hearing submissions
The applicant submitted to the Tribunal her application for review form and translated copies of her student loan statements dated 6 March 2022.
The applicant was sent a pre-hearing response form on 15 January 2025 to which she replied on 21 January 2025 and below is a summary of further claims she has made on this form that have not been heard by the delegate in the protection visa application:
a. My family in Malaysia did not accept my sexuality. If I’m going back to Malaysia, I fear my family may force me to marry someone.
b. In our culture in Malaysia, I don’t have to agree or give consent if my father or
brother agreed to marry me with someone. Marriage will be legal with just their
agreement. Plus, my parents is quite Religious. They won't accept having a
daughter who is a Lesbian and will force me for a marriage.c. My mom who knows about my sexuality keep calling and texting me to go
back home and try to introduce me with her friend's son or any other guy that
I don't know.d. I never had a good relationship with my mom since I tell her about my sexuality.
She can be controlling about my life. My mom did try to get me marry when I was
17, but my dad oppose because I still need to continue my study. Now I'm [Age], I'm afraid if I go back to Malaysia, my mom will try to find me and force me to get married. I don’t want to go back home and forced to get married with some guy or strangers that I don’t know.e. Furthermore, I fear mental or physical abuse by the community in Malaysia if they know about my sexuality. The authorities and government are unable to protect me regardless of where I live in Malaysia because of the rule that is illegal to be part of the LGBT community in all state of Malaysia.
f. I am worried about my safety and I am worried I can't handle my mental health if I stay in Malaysia, I have been depressed when I was living there.[8]
[8] Applicants pre-hearing response form, dated 21 January 2025
On 7 March 2025, the applicant communicated with the Tribunal by email stating,
‘It is my respectful submission that a favourable decision be made in my matter without the unnecessary expense of a hearing. The primary decision maker accepted that I was a lesbian. All the Tribunal needs to do is properly apply the Migration Act 1958 to those findings of the primary decision maker.
I note the following recent Tribunal decisions where this law has been appropriately applied by the Tribunal in respect of the LGBTQAI+ community from Malaysia (the applicant has attached 9 decisions made by the AAT and published on I note that the DFAT report about Malaysia confirms:
“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. LGBTQIA+ civil society organisations face a moderate risk of official discrimination in the form of legal charges and harassment by officials.”
If the Tribunal cannot make a decision on paper, I confirm that I will attend my hearing on 31 March 2025 as scheduled. This email was drafted with the assistance of a lawyer from Refugee and Immigration Legal Service (RAILS).’[9]
[9] Email from the applicant, dated 7 March 2025
The Tribunal informed the applicant on 14 March 2025 that a decision on the papers could not be made and she was invited to attend the hearing scheduled for 31 March 2025.
The applicant lodged a 6 page Statutory Declaration with the Tribunal on 24 March 2025. This document formalised the applicants claims but did not add further information or evidence to her claims and as such it is not summarised further here.
Applicant’s oral evidence at the hearing dated 31 March 2025
The evidence and questions discussed with the applicant at this 31 March 2025 (first hearing) only pertain to the 2024 second protection visa application as the material relating to the 2019 was not available for this hearing date.
Information in the 2024 protection visa application
Preparation of protection visa application
Regarding the preparation of her 2024 protection visa application, the applicant stated that she spoke with other Malaysian people when she arrived in Australia about the protection visa, then did her own research and prepared the application herself with no other assistance.
Background and history
Regarding her family members in Malaysia, she stated that she has a father and mother, [and siblings] all of whom still reside in Malaysia. Her mother is a national of [Country 1].
Asked if she has kept in contact with any family members since arriving in Australia, the applicant stated that she is no longer in contact with any family members from Malaysia. She said she was initially in contact with her family but has not been since November 2024 because her mother kept harassing her about coming home and meeting the son of her friend, so she has ceased communication with her for now. She follows her sister on social media and keeps updated via this means. The applicant has extended maternal family in [Country 1] but said she does not know them.
The applicant was born into a Muslim family. The applicant has provided a copy of her National Identification Card to the Department which states her religions as Islam.
Regarding her education, the applicant completed high school in Malaysia and then undertook a [diploma] at a college.
Regarding her employment history, the applicant worked in Malaysia in [Workplace 1]. When she came to Australia, she initially worked in a [Workplace 2] and now works as a [Occupation 1] in [City 1].
She has travelled to [Country 1] on one occasion in 2014 with her father to visit her mother’s family for a holiday.
Reasons for leaving home country
Asked why she left Malaysia, the applicant responded that her decision to depart Malaysia initially was for a holiday. When asked where she went and what sights she saw, the applicant said she stayed in Melbourne and saw the coloured houses on the beach. She later stated it was due to her family not being happy that she is a lesbian and her mother forcing her into marriage with a man she did not know. At this time, she did not mention the prior claim about the unpaid student loans.
Sexuality and fear of forced marriage
I have addressed these claims together as they intersect as the applicant states her mother persists in attempting to force her to marry a man because of her fear about the applicant’s sexuality.
When asked if she experienced harm while living in Malaysia she said she feared trouble with her mother regarding her sexuality. When asked what she feared would happen if she were to return to Malaysia she explained, ‘If my family know (about her sexuality) they would force me to get married. I will face discrimination from the Malaysian authorities.’
The applicant provided her relationship history on questioning and when asked about the photographs and untranslated messages she had provided to the delegate and again to the Tribunal, she stated these were the only evidence she had of the existence of her previous relationships. I explained these photos could be given little weight as it was impossible to determine who the other female in each photo was, without corroborative evidence. With regard the untranslated messages I asked the applicant if she could get these translated after the hearing because as they stood, they were not able to be given any weight, to which she replied she could and was given time after the hearing to do so.
I asked the applicant about her sexuality and how she learnt about this and her relationship history. The oral evidence the applicant provided at hearing was the same as her written tendered evidence, very brief, and she did not elaborate on any point which is included at paragraph 30.
I asked her about relationships in Australia and she said she had not had any. When asked if she had met other LGBTIQ+ people or community groups in Australia she said she had spoken to people on [App 1] (dating app) but they had different preferences than her and she is no longer active on the app and is not involved in any groups. She said people in Australia have been nice to her regarding her sexuality, although she does not tell people in the Malay community for fear of their judgement. She works primarily alone as a [Occupation 1] and does not confide in or have friendships with her work colleagues.
When asked who would harm her particularly, the applicant said she would be forced to marry. I asked how this forced marriage could or would occur. She said, ‘the guy asks for marriage, the father accepts it, I have no right to say yes or no as long as my father accepts this.’ I asked the applicant how her family would know she would have returned to Malaysia to then force her to marry and she said they could ask the police ‘who would find me in another state because of my sexuality.’
The applicant is of the view no authorities in Malaysia could help her as her sexuality is illegal. When asked if she had tried to live elsewhere away from her family she said, ‘yes, I tried to go to [Country 2], I applied for a job, but Mum found out and she would not allow me to go. I was still living in her house and by her house rules.’ I asked her then about leaving Malaysia to come to Australia and how she was allowed to take this trip, she said, ‘Mum didn’t know I was going to Australia. I told her two weeks before I left and then said I was going for a holiday. She believed me. I had bought ticket already.’
When asked in more detail about the claim regarding a forced marriage[10]and what this entailed, the applicant said initially, when she was 17 years old and had finished school, her mother wanted her to get married as she knew about her sexuality and saw marriage as a solution. Her father, however, said that she needed to study and prohibited the marriage that her mother was trying to instigate. Her father was and is unaware of her sexuality.
[10] The applicant has used the terms forced marriage and arranged marriage interchangeably throughout the material and in her oral evidence.
I asked the applicant about the period after her study at [age] and until she left Malaysia at [age] and whether her parents had again wanted her to marry a man of their choosing. She said that after she had finished her study, her mother had asked her to meet someone of her choosing and asked her to consider marrying him. She said she busied herself with her work and avoided her family to avoid her mother’s persistence regarding the marriage idea.
The applicant stated that her mother continued to persist with asking her to come back to Malaysia and meet a son of her mother’s friend with the intent of marriage. She said she stopped speaking with her mother at the end of 2024 because of this continuous harassment. She thinks her sister has informed their mother of the applicant’s life in Australia. When asked if her parents would/had also arranged a marriage for her sister, the applicant said her sister was still studying at college and this was unlikely as her parents were only focussed on her because of her sexuality. [The applicant’s other siblings] are married.
Effective protection measures
When I discussed with the applicant if there was anyone in Malaysia whether it be family, police and or authorities she could go to for assistance and protection from harm, she said there was no one as her family would force her to marry, her mother is controlling and could seek the assistance of the police and authorities to locate her (if she knew she had returned to Malaysia) by saying the applicant was either a missing person or by telling the police her daughter identified as LGBTIQ+. I asked if this were extreme - that her mother would go to the police regarding her daughter’s sexuality said that her parents are very religious and as such she believed her mother was capable of this to stop her daughter’s dishonour of the family.
Student loan
During the hearing, the applicant did not raise the original claim about her outstanding student loans. When I asked about this, she said yes, she still had these loans and they were to the Malaysian government and the money was borrowed to pay for her college diploma. She stated she had made some repayments on them before leaving Malaysia and had not made any repayments on them since arriving in Australia. The loan amount she thought was originally approximately [amount] AUD and had increased, with interest to about [amount] AUD. When asked what the terms of the loan were with regard the length of time she had to repay and the interest rate, the applicant said she did not know. When asked if she would pay the loan if she were to return to Malaysia, she said it would be hard to do so because of the interest that had mounted and she wished to study further.
Mental health
The applicant in her statements to the delegate stated she was concerned about her safety and her mental health if she were to return to Malaysia. When asked about her mental health, she stated she had suffered from depression whilst living in Malaysia. When asked if she had sought treatment, she said she had gone to a pharmacist in 2018 and was prescribed anti-depressant medication, which she commenced taking and found it helpful in the short term. She explained that she stopped taking the medication in 2019 when she came to Australia as she felt she did not need it anymore. When asked about her current mental health, she said she was feeling well because she was in Australia and felt she was able to be open about who she was with regard her sexuality. She said she was concerned that if she were to return to Malaysia, she would again feel depressed and was concerned how she would manage this.
Religion
When asked in more detail about her religion and how her faith intersects with her sexuality, she said she is Muslim by family and by birth but does not actively practice her faith in Australia. She commented that she had forgotten how to pray but she may fast over Ramadan. She commented that if she were to return to Malaysia her parents may force her to practice their faith and wear a hijab again. When asked how they would do this considering she is now a [Age] year old woman and could live away from her parents, she said they could find her and force her to go home as her mother is very controlling. She said her mother could report her as missing or because of her LGBTIQ+ status and involve the police. She reiterated her mother could force her to change.
Witness submissions
In her prehearing information form the applicant had listed a witness, a college friend who still resided in Malaysia but on the day of the hearing she stated the witness was not available. I asked the applicant if she would like to obtain a statement from the witness and forward it to the Tribunal after the hearing to which she agreed.
Post 31 March 2025 hearing submissions
The applicant provided the following evidence to the Tribunal after the hearing:
·Translated copies of the text messages between the applicant and a former partner.
·A statement of the witness [Friend A] dated 14 April 2025.
Resumed hearing 13 May 2025
The hearing was resumed on 13 May 2025 after I received the file from the Department regarding the 2019 protection visa application.
When I asked the applicant if she remembered completing this application form and did, she complete it herself, she said she had completed it herself with no assistance from anyone else.
I asked the applicant about the initial application filed on 4 December 2019 in which she had claimed she could not return to Malaysia because of student loan debt. She agreed this was still accurate.
The applicant lodged an amendment to circumstances form on 8 December 2019 stating she had ‘same gender preferences’ and this was taboo in her home country of Malaysia. I spoke with her about why this claim was not raised in the initial application and she said she thought about it after the initial application was filed and decided to include it then without the proof she was seeking. She stated that the ‘proof’ she wanted to include was on a laptop which was still in Malaysia. She eventually asked her sister to take the memory out of the old laptop and send it to her in Australia. She then had this data reclaimed and included it in her responses to the delegate in their request for further information.
In this document she also stated she and her partner were seeking a place together where they were ‘accepted in this community and live free.’ I asked her about her mention of a partner on this application and she said she had met an Australian woman called [Partner D] on the dating app, [App 1], and they went out for about a month but ‘there was not much chemistry and our cultures were too different.’
I also asked her why there was no mention of her parents wanting/forcing her to marry in the 2019 application. She said she did not think it mattered until she talked to a lawyer who told her to include it in the 2024 application.
When asked how she learnt about Australia’s protection obligations to certain people she said she had met Malaysian people when she arrived in Australia and asked them what type of visa they are staying on, they told her protection visa’s for ‘running away from loan sharks and being LGBT.’
At this hearing I asked her if she had met any other members of the LGBTIQ+ community while living in Melbourne and she said she had not but had met people in [City 1] where she now resides. She said she again met them from the dating app [App 1]. She met a woman called Ms [A] who was a backpacker from [Country 3] whom she follows on [Social media 2] but is not in contact with anymore after a short term relationship. She also met an Australian woman called Ms [B] and had a short term relationship with her after meeting her on the [App 1] platform. She does not have any contact with her anymore saying that [Ms B] is now in another relationship.
Oral evidence from the witness [Friend A]
The witness who had been listed for the 31 March 2025 hearing was available for this resumed hearing and her evidence was taken. The witness joined the hearing by MS Teams audio and spoke fluent English however an Interpreter in the Malay and English languages was available if necessary.
When asked the witness how she knew the applicant she said she had attended [college] in Kota Kinabalu from [year range] with her and both were undertaking a diploma course there. She said they had now known each other for 14 years and keep in touch most days ‘chatting and gossiping’.
I asked the witness if she knew the applicant’s ex partners, she said she had met [Partner B], who attended their college and was studying [a course], and the two had met at a college activity.
When asked if and when she knew about the applicant’s sexuality, she said she knew the applicant was initially afraid to tell her as she may not have been her friend but then became comfortable with her and she saw her ‘fall in love with her girlfriend ([Partner B]).’ She said she knew that [Partner B] cheated on the applicant, this ended their relationship, and the witness did not have contact with her after that time.
The witness stated she also knew the applicant’s second partner [Partner C] as she had come from the same city in Kuching as the witness. She said she was aware the two were in a relationship for about 2 years and had met on [Social media 1]. The witness explained that the applicant had come to Bintulu in Kuching for her college internship placement and lived with [Partner C] and her family for about 6 months. She said this was deemed as a friend to [Partner C’s] family. The witness explained that the applicant and [Partner C] broke up because [Partner C] remained in Bintulu and the applicant returned to Kota Kinabalu and the long distance did not work for them.
She said that after this time the applicant was single for a long time as she struggled to trust to be in a relationship again.
When asked if she knew why the applicant came to Australia, she said she thought the applicant ‘wanted to get away from her family and start a new life and be open about her sexuality.’
I asked the witness if the applicant spoke with her about the LGBTIQ+ community in Australia and she said the applicant felt accepted in Australia and wanted to meet a new partner but found it hard to trust. When asked if she knew about any new relationships, she said she thought the applicant was focussed on her career.
I asked the witness if she knew what the applicant’s relationship with her mother was like she said, she (the applicant) is the eldest daughter and this is such a high burden, her mother wanted her to be a [Occupation 2] but she wants to be a [Occupation 3] and her mother compares her to other relatives all the time’. She explained, ‘her mother wants her to find a good man with a good career like a doctor or a policeman and [the applicant] refuses to marry a guy, she doesn’t want her mother to keep pushing her.’
When asked if she knew about what life would be like if the applicant were to return to Malaysia, the witness said that she did not think the applicant had any plans to return to Malaysia, but if she was unsuccessful with her visa, she would come back to stay in Kuching rather than in Kota Kinabalu where she is from and start a new life there. I asked her why she thought the applicant could relocate to Kuching and she explained that that is where she lives and she would be a good support for her as a friend and in Kuching the LGBTIQ+ community are accepted and ‘people here don’t care about that, you can be who you want to be’.
Post resumed hearing submissions
On 19 May 2025, the applicant provided the Tribunal with a series of photos she has marked as 2013-2014 of herself and another female she states is her former partner [Partner C]. The photo’s include cards to [Partner C] and the couple wearing matching jackets and rings. She stated on the document with the photos, ‘we never take any picture like kissing, hugging or any picture that will put our life and relationship in danger because both of us living at [Partner C’s] parents’ house. Sometimes [Partner C’s] younger brother would borrow her or my phone to play games.’
Country information
Regarding sexual orientation and gender identity
I have considered a range of country information including the most recent DFAT Country Information Report on Malaysia which provides specific information on sexual orientation and gender identity.[11]
[11] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024.
The DFAT Report states that as a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent.[12]
[12] Ibid, section 3.126, page 32.
Across Malaysia, there are 52 laws that criminalise different forms of LGBTQIA+ behaviour. Prosecutions have taken place under these laws, including under s 377A and 277B (Unnatural Offences) of the Penal Code, which includes penalties of whipping and up to 20 years in prison. Numerous state-level syariah-based laws prohibit same-sex relations and non-normative gender expression.[13]
[13] Ibid, section 3.127, page 32.
Treatment of lesbians is worse for Muslim women as syariah criminalises sexual activity between women. The DFAT Report states that there were four arrests of Muslim women for syariah offences over two months alone in early 2022. While syariah offences only apply to Muslim women, they also have a significant impact on non-Muslim lesbians by harming their relationship with authorities.[14]
[14] Ibid, section 3.138, page 33.
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.[15]
[15] Ibid, section 3.128, page 32.
Successive Malaysian Prime Ministers have made anti-LGBTQIOA+ statements. Most recently in January 2023, Prime Minister Anwar said recognising LGBTQIA+ identities and behaviours “will not happen, and God willing under my administration this is not going to happen”. The DFAT Report goes on to say that the environment for LGBTQIA+ people had not improved under the Anwar Government.[16]
[16] Ibid, section 3.129, page 32.
Authorities at federal and state level have promoted so-called ‘rehabilitation’ or ‘re-education’ programs aimed at changing sexual orientation or gender identity, also known as conversion therapy. Although these programs are primarily aimed at Muslims, Christians are also targeted. According to the US State Department, as of June 2021, at least 1,733 people had attended such programs. While conversion programs are voluntary, in the sense that they are not court-ordered, in practice people were often coerced to attend by authorities and their communities.[17]
[17] Ibid, section 3.132, page 32.
LGBTQIA+ issues are considered taboo in Malaysia, particularly among Muslims. Online abuse against people who raise LGBTQIA+ issues online is common.
In general, the state is able but is not willing to offer effective protection. State authorities have been responsible for harassment, discrimination, and violence towards LGBTI persons with reports of physical and sexual assaults by police.[18]
[18] UK Home Office Country Policy and Information Note – Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024, sections 4.1.1-4.1.2, page 13.
Despite state actors insisting that the fundamental rights of LGBTI people are protected under the Federal Constitution, are treated equally, and have access to government services and assistance without discrimination, same-sex activity remains illegal. LGBTI persons are arrested for offences related to their gender identity and/or expression, which particularly affect trans persons and Muslims. It would therefore be unreasonable to expect a person identifying as LGBTI to seek protection from authorities.[19]
[19] Ibid, section 4.1.3, page 13.
The DFAT Report states that people in Kuala Lumpur were generally more accepting of LGBTQIA+ people than in East Coast peninsula Malaysia or Sarawak and Sabah.[20]
[20] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, section 3.147, page 35.
The UK Home Office states in its Country Policy and Information Note on sexual orientation and gender identity or expression in Malaysia that whilst homophobic attitudes are prevalent throughout Malaysia, particularly in more conservative Muslim areas, the federal territory of Kuala Lumpur is considered more tolerant of LGBTI persons.[21]
[21] UK Home Office Country Policy and Information Note – Malaysia: Sexual orientation and gender identity or expression, Version 2.0, July 2024, sections 5.1.3, page 13.
Malaysia’s oldest gay bar, the Blue Boy nightclub in Kuala Lumpur, which operated without incident for 30 years, was raided in August 2018. Twenty men were detained and ordered by the Federal Territory Islamic Religious Department of Malaysia to have counselling for ‘illicit behaviour.’[22]
Overall assessment of discrimination and harm levels for same-sex persons in Malaysia
[22] Ibid, section 3.1.18, page 9.
The level and frequency of discrimination faced by members of the LGBTQIA+ community differs according to their sexual orientation and gender identity, socio-economic status, religion, geographic location, and degree of openness regarding their sexual orientation and gender identity. Well-educated urban LGBTQIA+ individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than poorer individuals in rural areas.[23]
[23] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, section 3.147, page 35.
DFAT assesses that members of the LGBTQIA+ community face a high risk of official societal discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education,’ exclusion from public spaces, housing, and employment opportunities. DFAT also assesses that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay-Muslim, poor, transgender, and/or live in rural areas face a high risk of official societal harassment, discrimination, and familial and/or societal violence.[24]
[24] Ibid, section 3.148, page 35.
Country Information regarding forced/arranged marriages
103.The DFAT report on Malaysia in 2024 stated that ‘forced heterosexual marriages for lesbians are common, especially in Sabah. Lesbians in such marriages find it very difficult to obtain a divorce without outing themselves, especially if they are Muslim.’[25]
[25] Ibid, section 3.148, page 35.
104.Muslim marriages in Sabah are governed by the Islamic Family Law Enactment 2004. The defences against forced marriage in the Islamic Family Law Enactment 2004 at sections 13 and 53(1)(j): 13 states, ‘a marriage shall not be recognized and shall not be registered under this Enactment unless both parties to the marriage have consented thereto’.[26]
[26] Islamic Family Law Enactment 2004. The defences against forced marriage in the Islamic Family Law Enactment 2004 at sections 13 and 53(1)(j): 13
Section 7 of the Islamic Family Laws [Federal Territories] Act 1984 requires a woman, regardless of her age, to have a wali (male guardian) to solemnise her marriage; a man does not require a wali. The inference of this provision is that women, regardless of are not capable of making decisions about who they marry. Whilst it is understood the role of the wali is that of a male guardian, this term does not enshrine the idea that the woman must obey and adhere to a forced marriage. The role is that of the solemnity of the marriage if and when it were to occur.
ANALYSIS, REASONS AND FINDINGS
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The issue in this case is whether the applicant have a well-founded fear of persecution in relation to her home country of Malaysia and does she meet the refugee protection provisions in the Act and or does she meet the complementary protection provisions of the Act and as such is owed complementary protection by Australia. For the following reasons, the Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration.
Consideration of claims and evidence
Claims in the first protection visa application lodged 04 December 2019
113.The delegate did not consider the 2019 protection visa application as it was deemed invalid because of the question regarding the applicant as a dual citizen of Malaysia and [Country 1]. However, I have requested this information from the Department, reviewed it for consistency with the second visa application made in 2024 and sought clarification on it with the applicant at a second hearing. The initial application lacked any detail and relied on a claim about monies owed on a student loan to the Malaysian government and the effect this repayment would have on the applicant’s quality of life if working and living in Malaysia. The notification of a change of circumstances lodged as an addendum to this application on 8 December 2019 states the applicant has same gender sexual preferences and has a partner.
114.Whilst this information is scant in its detail of both the student loan and the sexuality claims, the claims are consistent with the applicant’s claims in the 2024 second application. However, the sexuality claim in the 2024 application takes centre stage and the outstanding student loan a backseat as the applicant did not make mention of it at hearing of her own volition and only on my questioning and with the addition of a further claim regarding a fear of a forced marriage by her mother. This forced marriage claim was not made mention in the 2019 claim and the applicant stated she did not consider it until advised by a lawyer before she completed the 2024 claim.
115.As such I accept the applicants claim regarding her student loan and her sexuality are consistent.
Claims in the second protection visa application lodged 31 January 2024
Claims regarding her sexuality
116.While there is a lack of detail in the applicant’s protection visa application, she provided a written response to the delegate upon request. The applicant provided the delegate with answers to their questions and a series of photographs of her with 3 other females and a set of untranslated text messages. She also provided the delegate with untranslated [Social media 1] group profiles to which she claimed to be a member of but did not interact in the groups and as such has no record within the groups. She also provided photographs of apps she claimed to have signed up to including [App 2] (a lesbian dating app) and [App 1] (a dating app for anyone). She did not however have any evidence of her interactions with anyone on either of these platforms claiming the [App 2] platform was ‘full of scammers’ and the [App 1] app she does not use anymore and when she did, she did not meet anyone with the same preferences as herself.
I accept the applicant has had a number of short term relationships since arriving in Australia.
The delegate in their decision record accepted the applicant may identify as a lesbian and as such meets the criteria of a member of a particular social group as defined in s 5L of the Act.
The applicant has provided the Tribunal with a statement from a friend living in Malaysia regarding her sexuality. The statement includes,
‘…throughout the time I have know [the applicant] sexuality and her same sex preference since college. I also have met and know some of her ex-partners. Due to the social, cultural, and legal risks involved in openly Identify as LGBTIQ+ in Malaysia [the applicant] has not disclosed this part of her identity publicly. She only disclosed her sexual orientation to an exclusive circle of closest friends and genuine about her sexuality’...[27]
[27] Witness statement of [Friend A], dated 14 April 2025.
I have considered this witness statement on its own and give it limited weight as it is brief and does not corroborate any further information the applicant has provided with regard who her ex partners were and when she was in these relationships.
However, at the second hearing on 13 May 2025 the friend who provided the statement discussed in paragraphs 112-113 appeared as a witness and I was able to take her evidence and question her. The evidence the witness gave was consistent with that of the applicant regarding her previous same sex relationships in Malaysia, and her history since being in Australia. I therefore accept the evidence the witness has provided with regard the applicants history of same sex relationships and as such her membership of the LGBTIQ+ community.
The applicant also provided the Tribunal with translated copies of text messages between herself and her ex-partner [Partner C] which are extracted as follows,
‘Miss you…Miss you too baby…Honey baby you are cute and fair…Very cute in my eye…Yes that right. At the beginning only…Happy Birthday Honey. May Allah bless you, Amen. How many times are you wishing…Cant I wish you many times?...You can it’s just a birthday nothing else…Let it be then. Its is your special day, Honey. I have prepared a present for you. I hope you will like it….Ok..where are you? Send picture first…On the bus. I sent before…Always love you…haha..(picture of female face)…Hahaha…Ok… What is, ok? Miss you badly…(picture of female face)…This is a macho look. The underpart of your eyes is dark, Honey. Nope. That’s a feverish face missing my lover. No smile. Hahahah. Can you show a smiling one? A cute one…Just work up from sleep. Ahah…(picture of female face)…Love you babyyy…(picture of female face) Can send picture…(picture of female face)…(picture of female face) was it just snapped?[28]
[28] Translated text messages provided by the applicant between she and [Partner C] dated October 28, 2012.
I have carefully considered the messages the applicant has provided as outlined in paragraph 121 and accept they are from another female and are of an intimate nature. The pictures corroborate an intimate same sex relationship.
I have considered the series of photographs the applicant provided the Tribunal following the hearings and in the main, the photos are of the applicant with another female who she states was her ex-partner. I give these photos limited weight as there is nothing to corroborate these are in fact the relevant person and that the person was the applicant’s intimate partner. In the last images the applicant has included images of a card she had made for her partner, [Partner C], and photos of both wearing the same jacket and wearing rings the same. Again, it is difficult to give these images significant weight as they are uncorroborated and out of their context, however I accept they are of an intimate nature.
I spoke with the applicant about relevant country information on Malaysia regarding LGBTIQ+ persons and particularly lesbians. I raised concerns with her that according to the UK country sources.[29] Kuala Lumpur is considered safer to live for LGBTIQ+ people and asked her to comment on this. She simply stated, ‘Kuala Lumpur is not safe’ explaining that Muslim law is the same throughout Malaysia because of the syariah[30] laws against her sexuality.
[29] UK Home Office, Sexual orientation and gender identity and expression, 8 July 2020, pp11-12.
[30] Malaysian use of the term interchangeably with Sharia referencing a body of religious law that forms part of the Islamic tradition.
The witness commented at hearing that she thought if the applicant had to return to Malaysia if her protection visa application was unsuccessful, she thought she could relocate to Kuching, the capital city of Sarawak state where she lives as it is more relaxed there and it was her view that LGBTIQ+ people are accepted there and there is a community. I can give little weight to the opinion of the witness on the safety of the applicant if she were to return to Malaysia and live with her in Kuching as this is only the opinion of the witness.
When I put this information to the applicant and ask if she wished to comment she said, ‘all of Malaysia the rules are the same. If I lived with her (the witness) I would be fine. Some might accept me, but others might reject me.’ I also asked her again if she wished to comment on country information about LGBTIQ+ people living in Kuala Lumpur. She said she had only ever been to the country’s capital on transit to another destination. She said that Kuala Lumpur is also governed by the same laws and syariah law and as such she thought that for non-Muslims it may be easier to live as a member of the LGBTIQ+ community than she would find it as a Muslim woman.
I have engaged with the country information regarding LGBTIQ+ people living in Malaysia and again with regard those who then also of an Islamic faith and as such I accept the country information about Malaysia being a majority Muslim and as such in the main syariah law is all encompassing of the nation.
Delay in departure from Malaysia
129.The applicant stated she discovered her sexual orientation when she was young, engaged in several relationships from [year range] but did not leave Malaysia until 2019. To this point the applicant said she avoided her parents saying she was working and as such their ideas for her marriage. The applicant did not have a relationship in Malaysia between [year] and her departure in 2019. She said this was because she was fearful of her parents and the government and kept busy working. I accept the applicant’s evidence.
Claims regarding a forced/arranged marriage
130.In her protection visa application, the applicant stated that if her parents knew about her sexuality, they could force her to marry someone. In the material she provided in response to the delegates questions she did not elaborate on this point. In her Statutory Declaration dated 22 March 2025, she has raised this point as a claim for protection in and of itself. When asked at hearing more about this point and why her parents had not continued with this forced or arranged marriage when she finished college and during the ensuing [years], she lived in Malaysia, she said she avoided them and was busy working.
131.The applicant claimed that in November 2024 her mother was again asking her to meet with the son of her mother’s friend with a view to marriage. She said she has not now spoken to her mother since this communication as she feels harassed by her to marry because of her sexuality. In her post hearing submissions, the applicant has provided translated text messages between herself and her mother regarding her mother requesting to ‘match her with a friend’s son’ and the applicant saying she did not consent to this or her mother sharing photos of her with anyone on [Social media 1]. While the messages indicate a conversation that is consistent with the applicant’s information about her mother wanting her to marry there is no evidence in the messages provided that her mother is using force, coercion, or intimidation toward the applicant to submit to her requests. The applicant is now a [Age] year old woman who has been living away from her family in Australia since 2019 and, as such, has avoided a forced/arranged marriage. I do not accept her claim regarding the currency of the enforcement of a forced marriage by her parents if she were to return to Malaysia in the reasonably foreseeable future.
132.When put to the applicant that forced marriage is considered an offence in Malaysia according to country information[31], she reiterated that her mother is very controlling and her father could arrange her marriage, and it is more of a cultural issue than a legal issue. As such the expectation is that a daughter can be subject of a marriage arranged by her father or brother and if she goes against this, it is seen as dishonouring her family.
[31] FORCED MARRIAGE FACTSHEET - FINAL, Muslim Women’s Network UK Factsheet, accessed on 29 March 2025.
133.In considering these points I do not accept the applicant’s claims that she fears she will be forced into a marriage if she were to return to Malaysia.
134.I accept however that the applicant has a strained relationship with her family, particularly her mother and this may well be the case moving forward whether she is living in Australia and at a distance from her family or in Malaysia and more likely be under the scrutiny of her family.
Claim regarding her religion
135.I accept the applicant was born into the Muslim faith and this is identified as such on her citizenship identification card.
136.I asked her about her religious practices again as she had previously stated she did not practice her religion since she had lived in Australia and did not wear her hijab here. I asked her how her religion may intersect with her sexuality if she is not practising it if she were to return to Malaysia. The applicant said she was not sure about this but said, ‘my family is religious and my mum would force me again to wear the hijab.’ I asked her how her mother could force her to do this and in fact how her mother would know she was living again in Malaysia, if she were to live in Kuala Lumpur and or Kuching. She again reiterated that her mother may go to the police to make her come home. I asked how she thought her mother would know she had returned to Malaysia and she said her sister might tell her.
I do not accept this claim as it appears rather far fetched to believe the applicant’s mother would firstly know she had returned to Malaysia if they are not in communication, then secondly go to the extreme of notifying the authorities/police of her daughters sexuality and her religion (Islam) to then bring her home at the age of [Age] and then force her to live with her parents after a 6 year absence.
Claim regarding student loan debts
In her application to the department, the applicant claimed to have student loan debts and this caused her stress as she would like to study further. She provided the delegate upon their request with copies of these student loan debts.
At hearing the applicant did not raise the student loan debts when asked about her claims for protection and this point was only discussed when I raised it with her. She stated the student loans were with the Malaysian government for her college study. She did not know the term of the loan, the interest rate, or the consequences, if any, of her non repayment apart from interest accumulation. She has made no efforts to repay the loan since residing in Australia and working for the past 5 years. She said that if she were to return to Malaysia having these debts would make it difficult for her to study further and have a decent life.
As such I do not accept that these loans as they stand with the Malaysian government to be considered a real chance of harm to the applicant if she were to return to Malaysia in the foreseeable future. These loans are that which any student in Malaysia is subject to when pursuing further education and as such a global countrywide issue and not an issue that is particular to this applicant.
Claim regarding her mental health
The applicant has claimed if she were to return to Malaysia, she would again suffer depression because of having to deny her sexuality. Whilst I understand that the applicant may in fact have suffered from depression in Malaysia and sought anti-depressant medication as treatment; I have given this claim little weight as there is no other corroborating evidence before me to support there is a direct link between the applicants mental health status while living in Malaysia and her sexuality claims.
I accept the applicant may have suffered from mental health issues while living in Malaysian because of the intersection of her claims in that she is a lesbian, she is from a strict Muslim family and her mother has and still attempts to have her marry a man as a means of denying her sexuality. She has then broken ties with her family. All these points cumulatively can be deemed vulnerabilities for mental ill health. I note the applicant states she is currently not on any psychiatric medication and feels psychologically stable and has been so for the last 5 years since living in Australia.
Does the applicant satisfy the refugee criterion for protection?
Based on the findings of fact the Tribunal has made and considering the country information, I am satisfied the applicant faces a real chance of harm if she were returned to her home area, Kota Kinabalu, Sabah state, Malaysia in the reasonably foreseeable future. I am satisfied based on the findings as described in paragraphs 112-140 above.
This harm is considered serious harm as set out in s5(J)(5). This harm is considered as a level of discrimination because of her sexuality if she discloses this to those around her and does not modify her behaviour to keep this a secret. I find that the applicant cannot be required to alter or conceal either, because these are innate or immutable and fundamental to her identity: s. 5J(3)(a), (b). I find that the applicant would not and is not able to conceal her identity as above, partly because she cannot be required
I have considered the applicant’s claims in the context of the country information set out and summarised above. I consider that the country information is indicative of ongoing discrimination and harassment against LGBTI people in Malaysia, officially or officially condoned. Whilst it is the case that discrimination of itself may not meet the threshold of serious or significant harm, the country information supports a view that Malaysia is becoming less tolerant of LGBTI people rather than more, that the laws create a chilling effect and can and have been reported to have been used to harass, extort, exploit and commit physical and sexual violence against LGBTI people, and I note the information that the legal situation and the Islamisation of Malaysia provides a degree of impunity for hate crimes.
The harm is considered for one of the reasons as set out in s 5(J)(1)(a) it is for reasons of her membership of a particular social group namely Muslim lesbians living in Malaysia. It is an essential and significant reason as required by s 5(J)(4)(c).
I note findings by Senior Member Baker of the then Administrative Appeals Tribunal dated 17 June 2024 and include these here as a useful summary:
‘I consider that the laws of Malaysia, and the ongoing anti-LGBTI sentiments of political and religious leaders provides an environment permissive and conducive to discrimination, harassment and violence against LGBTI people in Malaysia: see Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [46 - 47]’[32]
[32] Decision of Senior Member S Baker, dated 17 June 2024, 1829328_SB_RRT.doc
The harm, according to country information[33] relates to all areas of the receiving country as is required by s 5J((1)(c). I accept the applicant fear of harm if she were to return to her home area of Sabah state where some of the most stringent responses to LGBTIQ+ persons are noted.
[33] UK Home Office, Sexual orientation and gender identity and expression, 8 July 2020, pp11-12.
On the country information I find that the authorities would not protect the applicant from harassment, intimidation, exploitation, extortion or hate crimes she may experience. Taking that into account and the particular circumstances of the applicant, I am not satisfied that the State is willing to offer effective protection measures to the applicant, nor am I satisfied that the applicant would be able to access effective protection measures if returned to Malaysia now or in the reasonably foreseeable future.
I find that the applicant’s membership of the particular social group of LGBTI persons, is the essential and significant reason for the persecution, and that the persecution involves ‘serious harm’ as it amounts to significant physical harassment and significant physical ill-treatment as listed in subsection s.5J(5), and that the persecution involves systematic and discriminatory conduct, as required by paragraph s.5J(4).
I find that there is a real chance, that is, one that cannot be discounted as remote, that the applicant will suffer persecution for reasons of her membership of the particular social group of LGBTI persons, as a person in a same-sex relationship and as a person who is in a de facto relationship with a person of the same sex, if she returns to Malaysia, now or in the reasonably foreseeable future.
Concluding paragraphs
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).
Having concluded that the applicant meets the refugee criterion in s 36(2)(a), I have not considered the alternative criterion in s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
The applicant is a citizen of Malaysia. There is no information before me that establishes that she has a right to enter and reside in any country apart from Australia. I find that s 36(3) does not apply to the applicant.
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the orders that the applicant meets s 36(2)(a) of the Migration Act.
DATE OF HEARING: 31 March 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…
5H Meaning of refugee
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.
(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:(i) the characteristic is an innate or immutable characteristic;
(ii) the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii) the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:(i) the relevant State; or
(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…
36 Protection visas – criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…
- AGLC
- 2419478 (Refugee) [2025] ARTA 1550
- Case
- [2025] ARTA 1550
- Decision Date
CaseChat Overview and Summary
The tribunal found that the applicant's fear of persecution was well-founded, considering the legal and social climate in Malaysia regarding LGBTI individuals. The tribunal acknowledged the harsh penalties for same-sex relationships, including imprisonment, fines, and caning, and the societal stigma attached to such relationships. The tribunal also noted the applicant's inability to openly live her truth in Malaysia due to these pressures, corroborated by the provided photographs and personal testimonies. Furthermore, the tribunal considered the applicant's mental health concerns and the economic hardships she would face if forced to return to Malaysia. The tribunal concluded that the applicant's claims were credible and that she had a genuine fear of persecution if returned to Malaysia.
Based on these findings, the tribunal set aside the decision under review and remitted the application for a protection visa for reconsideration. The tribunal determined that the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act. The decision highlighted the importance of recognising the real and serious risks faced by LGBTI individuals in countries where their rights are not protected. The tribunal's decision underscores the need for Australia to honour its obligations to provide protection to those fleeing persecution based on immutable characteristics such as sexual orientation.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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