2506035 (Refugee)
[2025] ARTA 2102
•17 September 2025
2506035 (Refugee) [2025] ARTA 2102 (17 September 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Rajinder Singh Bassan
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2506035
Tribunal:Damien Power
Date:17 September 2025
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 17 September 2025 at 4:19pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – Sikh – Federal Circuit and Family Court remittal – homosexuality claims – beaten and stabbed – sectarian-motivated violence – fears forced marriage – inconsistent claims – immigration detention – long delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 26 June 2019. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 10 September 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review.
BACKGROUND
The applicant is [age] and comes from Perak.
The applicant speaks, reads and writes Punjabi, with some limited English.
Evidence before the Department
Migration History
The applicant arrived in Australia on a visitor visa [in] October 2006.
On 28 June 2019, the applicant lodged a valid application for a (subclass XA-866) protection visa.
On 6 August 2019, the delegate made a decision to refuse the applicant a protection visa.
Protection visa application
The claims contained in the applicant’s protection visa application are set out below.
· The applicant was born in Malaysia and is a Sikh, although he no longer considers himself to be a committed follower of his faith. His mother and [siblings] continue to reside in Malaysia, and he also has a [sibling] who resides in [Country 1].
· He has been targeted by Muslim gangs in his home area in Malaysia. They have targeted him on account of the fact he is a Sikh. He has been subject to numerous beatings including incidents where he was stabbed and cut during knife attacks. He still has scars all over his body due to these knife attacks.
· Reporting such incidents to the local police would have been to no avail given the fact they remain largely indifferent to sectarian motivated violence. Local police in Malaysia usually avoid confronting hard line Muslims for fear of further fuelling the sectarian violence.
· He was subject to ongoing violence at the hands of these Muslim gangs and his situation was made even worse by the fact that he was suspected of being a homosexual.
· Homosexuality is regarded as abhorrent in conservative Malaysian society. His attraction to males first developed at [age]. However, given the conservative views towards homosexuality in Malaysia he feared coming out. He strenuously denied all accusations of homosexuality that were made against him. The applicant feared being subjected to serious harm at the hands of relatives and religious radicals, and also legal prosecution under Malaysia’s strict anti-sodomy laws. Homosexuality is illegal in Malaysia.
· Despite his fears he maintained a covert homosexual relationship with a Muslim man called [Partner A], which lasted approximately 10 years. This relationship evoked suspicion amongst his family and the hardline Muslim community. He was beaten and subjected to many death threats by Muslim gangs who suspected he was in a morally abhorrent relationship. [Partner A] was also subjected to the same level of physical harm by his own relatives and family.
· The relationship ended after [Partner A] married a woman in order to shed the infamy of homosexuality. The applicant has not maintained any contact with [Partner A] since he fled to Australia in 2006. Entering into a heterosexual marriage is viewed as atonement for past homosexual sins. For the majority of homosexuals in Malaysia, marriage is the only means by which a homosexual can achieve familial and societal acceptance.
· Although he remains a homosexual man, he has not fully come out in Australia and continues to conceal his true sexual orientation amongst his family and relatives. His family and relatives would never accept his homosexuality. He has had constant conflict with his family who have demanded that he return to Malaysia and get married, in accordance with accepted social and religious norms.
· His reluctance to return to Malaysia is driven by a fear of his true sexual orientation being discovered by his family and relatives and being forced into a heterosexual marriage.
· Over the years in Australia, he has tried to largely conceal his true sexual orientation, not for fear of being harmed, but for fear of his family and relatives in Malaysia discovering his sexuality.
· He has opted to have covert homosexual relationships in Australia. Since 2006 he has had multiple short-term sexual relationships with men.
· The applicant fears returning to Malaysia because he may be prosecuted under Malaysia’s strict anti-sodomy laws. He also fears the community resentment of homosexuals, usually fuelled by the fundamentalist religious groups, including amongst the Sikh community.
· He considers the most serious threat will arise from radical Muslims in Malaysia who do not hesitate to kill homosexuals and justify the violence by their strict Sharia teachings.
· He also fears that if he returned to Malaysia, he would be forced to conceal his true sexual orientation.
Summary of the delegate’s decision
The delegate pointed to inconsistencies and a lack of detail in the applicant’s evidence in reaching a conclusion that the applicant’s claims regarding his sexuality were not credible. The delegate found that the available country evidence did not support the view that the applicant would be targeted because he was Sikh. The delegate was not satisfied that the applicant faced serious or significant harm on return to Malaysia.
Court remittal
The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit and Family Court of Australia (FCFCA). The matter is now before the Tribunal pursuant to an order from the court.
Evidence before the Tribunal
Additional submissions or evidence
The applicant’s agent submitted a copy of the DFAT country information report dated 24 June 2024.
The applicant had previously submitted to the Tribunal at his first hearing photos of what appeared to be scars on his body.
The hearing
The applicant attended a hearing on 10 September 2025.
The applicant provided further detail about his experiences in Malaysia and Australia, and about his claims for protection at the hearing. The applicant also gave evidence about his background, work history and other matters.
The applicant’s evidence is discussed in detail under Reasons and Findings.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Nationality
The applicant arrived in Australia in 2006 and was cleared through immigration. He did not present a copy of his passport at the hearing. However, the delegate was satisfied as to the applicant’s identity and nationality. The applicant has provided a consistent account of his claimed identity. In the absence of evidence to the contrary, I am satisfied as to the applicant’s identity and that his receiving country for the purposes of assessing his claims for protection is Malaysia. There is no evidence that the applicant is a national of or has a right to enter and reside in any country other than Malaysia.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
At the beginning of the hearing, the applicant was asked whether he was feeling well and able to give his evidence. The applicant said he was. The applicant was asked if he was on any medication, and he said he was not.
The applicant was asked whether he was working in Australia. The applicant said that he was not working at present. The applicant said that his [sibling] in [Country 1] supported him financially, paying his rent and his food bills. He said he also got help from a friend called [Friend A].
The applicant said that he had previously done [Occupation 1] work in Australia. He had also done odd jobs such as [Job tasks 1 and 2]. In Malaysia, he had worked [at Family Business 1]. When [Family Business 1] was sold following the death of the applicant’s father, he worked for several years as [an Occupation 2] prior to departing Malaysia.
I asked the applicant why he was not working now, and he said he did not have work rights. I asked if there was any reason he could not work if had permission to do so. The applicant said there was no reason he could not work.
The applicant’s parents are now both deceased, the applicant’s father passing away in 2000 or 2001 and his mother passing away around nine months ago. The applicant’s mother paid for the applicant to travel to Australia. The applicant was asked when he had travelled to Australia, and he said he thought it was sometime in September 2006. His original application indicates that he arrived [in] September 2006, although the delegate’s decision states that the arrived in October 2006.
The applicant speaks to his siblings. His responses appear to show that he was aware of their circumstances and involved in their lives. [Sibling 1] is [an Occupation 3] in Kuala Lumpur (KL) who [job details]. [Sibling 2] is [an Occupation 4] in Ipoh city, near the area where the applicant grew up. [Sibling 3] still lives in the applicant’s home village of [Village 1], in Perak, which is on the outskirts of Ipoh. He said that [Sibling 3] in Malaysia is now incapacitated and draws a pension. As noted above, he said that [Sibling 4] lives in [Country 1] and said that [he/she] was involved in running a [business].
He said that he spoke with [Sibling 1] after their mother’s death and noted that [Sibling 1] was still upset about their mother’s passing. He said that he stayed with [Sibling 1] in KL for three or four months in 2006, and that [Sibling 1] saw him off at the airport when he left Malaysia. As noted above, the applicant said [Sibling 4 in Country 1] supports him financially, and the applicant said that this [sibling] had helped him a lot.
I said to the applicant that I had read his claims regarding his sexuality and his same‑sex relationship. I asked the applicant is he had any other claims he wanted to put before the Tribunal. The applicant said he did not.
The applicant has made a claim that he was targeted because of his relationship with a Muslim man back in Malaysia.
The applicant was asked when he first realised or had an awareness that he might be gay. The applicant said that it was when he was [age] years old. I asked the applicant if there was any particular moment or event that had led him to the realisation that he was homosexual. The applicant said he was just inclined that way.
The applicant was asked if he had any same sex experiences in Malaysia. The applicant said that the first time had been when he was about [age] years old. He said his first sexual experience had been with a person called [Partner A] with whom he had previously gone to school. The applicant had left school by the time he was [age], but kept in touch with [Partner A] as they did not live very far apart.
The applicant was asked if he had any other same sex relationships or experiences in Malaysia. The applicant said he had not had any same sex relationships in Malaysia of any kind except for his relationship with [Partner A]. The applicant had previously noted that he had not had any same sex relationships in Australia. The applicant was asked to confirm that his relationship with [Partner A] was his first and only same sex relationship and he confirmed that this was the case. It was put to the applicant that if he had first begun his relationship with [Partner A] when he (the applicant) was [age], their relationship must have begun sometime around 1990. The applicant said that this correct. I said that in this case, their relationship must have continued for something like 15 or 16 years. The applicant said that this correct.
The applicant was asked to describe what sort of person [Partner A] was. The applicant said that he looked OK, he was just normal. I asked the applicant if there was anything he wanted to tell me about [Partner A], and the applicant said [Partner A] was OK. I asked the applicant what [Partner A] did for a living, and the applicant said that he lived with his parents.
The applicant said that [Partner A] was sent away by his parents after their relationship ended. He said this occurred three or four months before the applicant departed Malaysia. The applicant thought that he might have been sent away to relatives in Terengganu state.
The applicant was asked how long his relationship with [Partner A] had lasted. The applicant said that it was more than ten years. I asked if anyone had known about their relationship, and the applicant said his family and [Partner A’s] family had eventually come to know about their relationship. The applicant had never told anyone about their relationship. However, when [Partner A’s] family found out about their relationship, they had attacked the applicant.
The applicant said that [Partner A’s] family had first confronted him sometime in 2005 and that their harassment or the conflict with them had continued until 2006. The applicant was asked how their relationship had been discovered. He said that he and [Partner A] had spent almost every day together, riding their bikes and going off together. He said that someone must have told [Partner A’s] family.
I asked the applicant why it had taken [Partner A’s] family around fifteen years to figure out that they were in a relationship together. The applicant said that they had never shown anything, by which I took him to mean they had never been public with their relationship. I asked the applicant whether his family had just figured it out or whether something had happened. The applicant repeated that someone must have told [Partner A’s] family.
The applicant said that [Partner A’s] family had started making threatening phone calls, telling his mother to make sure the applicant stayed away from [Partner A]. He said that on one occasion when he was not home, [Partner A’s] brother had come to the applicant’s house and warned his mother to make sure the applicant stayed away from [Partner A].
I asked the applicant if he had continued seeing [Partner A] after those threats. The applicant said he could not see [Partner A] anymore because he had been sent away by that time.
I asked the applicant to tell me about the incident in which he had been physically attacked. The applicant said that this incident had occurred about four or five months before he departed Malaysia. He said that he had been attacked by male members of [Partner A’s] family. I said that I understood that he and his family had also been verbally threatened but asked him to confirm how many times he had been physically attacked. The applicant said that he had only been physically attacked once.
The applicant was asked to describe the physical attack in more detail. He said he had been riding his bike when [Partner A’s] family had approached him. They were also on bikes and boxed him in, forcing his bike to stop. Once he had been stopped, they began swearing at him. He said that they told him to stop seeing [Partner A] and that he should leave the area.
He said that his assailants then began attacking him with sticks and knives. He was cut on more than one part of his body. He said that they only stopped when other people came along the road. His assailants had then run away. The applicant was asked if he had gone to hospital. The applicant said that he had gone to a local pharmacy. I said that he had been cut or stabbed multiple times and asked why he had not gone to a hospital. The applicant said that his family had not wanted him to register a complaint or go to hospital because they were afraid the applicant would be the one in trouble. He said he had just bought some medicine and bandages and treated the wounds himself.
I asked the applicant if he had tried to go elsewhere in Malaysia. He said that he had gone to KL and had stayed there for about three or four months. I asked if he had had any issues in KL, and the applicant said he had not. I asked why he did not simply stay in KL. The applicant then said that threats to his mother had continued. I asked why [Partner A’s] family would continue to threaten the applicant’s mother, considering that they had told the applicant to leave the area, and he had complied with their wishes. The applicant said that [Partner A’s] family suspected his mother of hiding the applicant in her home.
I put to the applicant that he lived in a small area. He was in KL and could not have been seen in his village for months. I asked why [Partner A’s] family would think he was hiding at his mother’s house. The applicant evidence on this point was somewhat confused. He initially said that someone might have told them that he had been sent to [Sibling 1], before saying that someone might have told [Partner A’s] family that he was visiting his mother in secret.
The applicant was asked why he had decided to leave Malaysia. The applicant said that his family had pressured him to leave the country. I said that he had not had issues in KL, so why had he left Malaysia. The applicant again gave somewhat disjointed evidence. He said that people had found out he was in KL and had a [sibling] there, and they wanted him to go away somewhere. He said they suspected he was in KL. I said that if [Partner A’s] family did not want him to stay in Malaysia at all, why had they not said that when he was attacked. The applicant said that these threats had come afterwards, and [Partner A’s] family had continued to pressure his family.
I asked the applicant if he had had any contact with [Partner A] since he had been in Australia, and the applicant said he had not. I asked if he had been contacted by anyone in [Partner A’s] family since he had been in Australia, and he said he had not. I asked if there had been any further contact between [Partner A’s] family and his family since he had left Malaysia, and he said there had not. He said his relatives had gotten back to a normal life.
The applicant made a passing reference to having been in hiding here in Australia and was questioned about it. He made it clear that he meant that he was in hiding due to not having a visa. I said that he had a visa now, a bridging visa. The applicant said that he had only gotten this visa after being released from detention. The applicant was asked some further questions and clarified that his refence to being in hiding was related solely to his immigration status in Australia and was not relevant to the protection claims he was putting forward.
The applicant was asked about his experiences in Australia. The applicant confirmed again that he had not had any romantic or sexual same sex experiences in Australia. I asked if he had been involved in any way with the LGBTI community in Australia, and he replied that he had not.
I asked the applicant if he had told anyone in Australia that he was gay. The applicant asked rhetorically who he should tell. I asked if he had told any of his friends. The applicant said that he did not have any friends. I said he had talked about meeting people in the park and socialising with them. He said that he went there just to share a drink. He confirmed again that he had not had any involvement with the gay community here and had not told anyone her about his sexuality.
I asked the applicant if he was still in touch with [Friend A], the person who had helped him after he had been released from detention. The applicant said that he was. I asked if the applicant had told [Friend A] he was gay. The applicant said that he had told [Friend A]. I Asked the applicant if he was ever in a sexual relationship with [Friend A]. The applicant said he was not, and that [Friend A] was a family man. He said [Friend A] had helped him when he got out of detention and that [Friend A] had told him that being gay was legal.
As the applicant had made a number of claims regarding his Sikh religion and identity, he was asked if he had any claims in that regard. The applicant said his family did not agree with his relationship because it was also against their (Sikh) religion. I said that his family appeared quite supportive, and he was still in touch will all of his siblings. [Sibling 4] had supported him financially. He repeated that his family was opposed to his relationship.
I asked the applicant what would happen if he returned to Malaysia now. The applicant said that he could not go back and that his family had warned him not to come back. They said he would have problems with the Muslims again if he came back. I asked if he could go back to Malaysia and go somewhere like Kuala Lumpur. He said [Sibling 1] there was married now, and he did not have a place to go. He referred a number of times to the fact that his parents were no longer there in Malaysia.
I said that his parents were (quite obviously) not in Australia either, he was not working here, and his family were not here. I asked why he could not return to Malaysia, where he had the support of his family, and find work and make some sort of life there. [Sibling 4] was providing him with financial support to pay his rent and food here, and that money would go much further in Malaysia. The applicant said that [Sibling 4] had advised him not to return to Malaysia because there was danger over there.
The applicant’s agent was given a chance to make comments on the applicant’s behalf but declined to do so.
Findings
I have considered the evidence of the applicant carefully. However, I do not accept his claims as credible for the reasons set out below.
The situation for the LGBTIQA+ community in Malaysia is difficult. Country information indicates Malaysia is ‘generally intolerant’ of the LGBTIQA+ community[1]. Same-sex sexual acts are criminalised under Malaysian federal law, and this position is also mirrored in a large number of state-based laws[2]. The impact of such laws and the associated stances by various levels of government usually have a more pronounced impact on Malay-Muslims, given they transgress both syariah law and the penal code[3].
[1] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, 20240624113833
[2] Ibid
[3] Ibid
Notwithstanding, attitudes towards the LGBTIQA+ community vary considerably within Malaysia. DFAT has noted that people in KL are generally more tolerant of the LGBTIQA+ community[4]. The UK Home Office quoted sources as indicating that KL has better access to support services and community groups for LGBTI people compared to other states[5]. LGBTI clubs are generally able to operate without state interference in KL[6]. Although Malaysia’s oldest gay bar, the BlueBoy nightclub, was raided in August 2018, there have not been any further raids reported on the nightclub and it currently remains open[7].The situation for gay males in Malaysia varies, then, according to their socio‑economic status, the area of the country in which they are residing and other factors.
[4] Ibid
[5] 'Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression', UK Home Office, 12 July 2024, 20240717113733
[6] Ibid
[7] Ibid
However, in the present case, I do not accept that the applicant is gay or was persecuted on that basis.
The applicant’s account of events in Malaysia has varied considerably in regard to the details put forward at his Departmental interview and his appearances before the Tribunal. Some of the apparent inconsistencies, such as the applicant’s contention in his written claims that he was beaten multiple times as opposed to his claim at hearing that the was only beaten once, the Tribunal is willing to ascribe to a misunderstanding or miscommunication in recording his claims.
However, the applicant has been consistently inconsistent in regard to the duration of his relationship with [Partner A], and the approximate year (or age of the applicant) when their relationship began. He claimed to the delegate that he was [age] when the relationship with [Partner A] began, and the relationship lasted for 4 ½ years. At his first hearing, he also said he was [age] but said the relationship lasted approximately ten years. At his present hearing, he said that he was [a different age] when the relationship began and that it had lasted over ten years.
This inconsistency is not simply between his oral evidence and his written statement but between his statements at his interview with the delegate and his statements at both hearings. The applicant provided a number of explanations for these inconsistencies related to his time in detention, lapses of memory, and poor interpretation. However, the applicant could not explain why being in detention caused such marked differences in his testimony on these two points. He was also able to provide other details in those hearings, such as his family composition and dates of arrival here that were consistent. He said he was not on any medication. He has not produced any evidence from a medical professional to indicate that his memory has been adversely affected.
Similarly, the applicant has not provided any evidence of serious deficiencies in the interpreting at his delegate interview and his first hearing. I note that he was asked a number of questions about the commencement and duration of his relationship with [Partner A] by both his previous interlocutors, and these questions were put in a number of different ways. While I may not agree with all the previous findings of inconsistency made about the applicant’s evidence, I do not accept that faulty translation played a part in his inconsistency on other key points noted in this decision.
While I give some latitude to the applicant given the considerable passage of time since these events have taken place, I do not accept that this explains his signal inconsistency regarding basic matters such as the commencement and duration of his relationship with [Partner A].
The applicant previously contended that he received scars on his body in the physical attack on him by members of [Partner A’s] family (or their associates). However, the applicant gave conflicting evidence about whether or not he attended hospital. At his hearing with the delegate, he said that he attended (or was brought to) a private hospital. At hearing, he claimed that he only went to a pharmacy and bandaged the wounds himself. When the applicant was reminded of his previous evidence that he had gone to a hospital, the applicant simply repeated again that he had gone to a pharmacy. The Tribunal has difficulty accepting that the applicant could suffer multiple knife wounds and treat them himself with bandages bought from a pharmacy.
Further, I have gone back and listened to the delegate interview again and the word hospital is repeatedly used by the translator. The applicant himself can be heard using the word hospital quite clearly himself at one point in the recording. While I would not normally put undue focus on a single word, I am satisfied that the applicant initially claimed to the delegate that he went to hospital, and that his evidence changed in that regard at his hearing. While hardly dispositive in itself, I am not willing to entirely discount this inconsistency.
I accept that the applicant has some scars on his body. However, I also consider that his evidence as to how he dealt with those wounds has been inconsistent and unconvincing. In any event, there is nothing before me, beyond the applicant’s verbal evidence, to indicate that his scars were received in an attack of some kind. I am not satisfied that the applicants scars indicate that he was attacked in Malaysia.
The applicant also made a number of claims in his written statement regarding a range of matters relating to Muslim gangs, his Sikh religion and ethnicity, and his claimed same sex encounters in Australia that he did not repeat or disavowed at hearing. The applicant has claimed that being in detention was a factor for confusion about his claims. He also claimed that a Punjabi interpreter was used, and that he could not understand the interpreter.
As noted above, I put to the applicant that there were many things in his initial written statement that were correct. He had correctly given his date of birth, talked about [Sibling 4 in Country 1], talked about the rest of his siblings, and identified his claimed lover by name. He was also able to recall approximately when came to Australia and the type of visa that he travelled on. However, when I asked the applicant to clarify why some parts of his written statement were correct but other parts were (according to the applicant) incorrect, he did not offer a response.
While I am willing to give the applicant some latitude in terms of discrepancies between his written statement and later oral evidence, I am not satisfied that the reasons he put forward satisfactorily explain the marked difference between his written claims and his statements to the delegate and the Tribunal.
The applicant also claimed at his hearing to have had only one homosexual relationship in his entire life – the relationship with [Partner A], a Muslim male. His evidence on this point contained some key inconsistencies, as set out above, regarding the duration and commencement of that relationship.
The applicant was also invited to talk more about [Partner A] as a person and gave a curiously perfunctory response. He said that [Partner A] looked OK and was just normal. While I do not draw an adverse credibility finding on this point, the fact remains that there was little in his testimony regarding [Partner A] to overcome my concerns with his overall account, nor was there the sort of natural, spontaneous detail that might be weighed against the other deficiencies in his evidence.
The applicant also delayed seeking protection for almost 13 years, only lodging for protection once he entered immigration detention. The applicant offered a range of factors that contributed to this delay including his low levels of education, his lack of knowledge about the system in Australia, not knowing anyone, and his lack of papers (which I took to be a reference to identity papers).
Again, I am prepared to afford the applicant some degree of latitude in regard to his delay in applying for protection. However, he did manage to find work and accommodation in Australia, and had friends in the community. He did not appear to show any particular inclination to make applying for protection a priority.
It was put to the applicant that, given the relatively high public profile around protection issues in Australia, the fact that he had contacts in community that spoke English, and was able to arrange visa to Australia and find work and accommodation here, I may not find that the factors he cited explained a delay of approximately 13 yrs in applying for protection. The applicant did not add anything to his previous responses.
Although not determinative in itself, I place some weight on the applicant’s very considerable delay in seeking protection.
I have considered the applicant’s claims. However, I do not accept any of his claims as credible for the reasons set out above and summarised below:
· The significant difference between his written claims and his claims as put forward to the delegate and at hearing, such as the omission of any mention of Muslim gangs targeting him for being Sikh.
· But for the claims regarding the attacks by [Partner A’s] family which I do not accept as credible, the lack of any evidence that he was ever targeted on the basis of his Sikh identity or religion, and the lack of any details regarding such targeting from the applicant at his hearing.
· The difference between his written claims stating that his family urged him to return to Malaysia and get married, as against his consistent evidence at hearing that they had warned him never to return to Malaysia.
· The significant delay in seeking protection, and the insufficiency of his reasons for not seeking protection earlier.
· Most particularly, the fact that the applicant (by his own evidence) has not had any same sex relationships in Australia in the almost two decades he has been here, despite knowing that homosexuality is legal, coupled with the fact that he has never had any tangible involvement with the LGBTIQ community here.
The applicant also stated that there was nowhere for him to go in Malaysia and that he could not find work. He said that his mother had died and there was nothing for him in Malaysia.
However, the applicant has a varied work history. He previously supported himself doing [Occupation 1] and has also worked [in Occupation 1] here. He has also worked as [an Occupation 2] in Malaysia, and by doing [Job tasks 1 and 2] here in Australia. The applicant said, when questioned, that there was no reason why he could not work. He further stated that he was not currently on any medication. While the applicant’s parents have passed, he has other family in Malaysia and is clearly (according to his earlier evidence) in contact with them and being supported by them.
Apart from his claims to be gay, which I do not accept as plausible, the applicant has not put forward any reason why he would be discriminated against in finding employment. It should also be noted that the applicant is not currently working in Australia, and his rent and food are paid for entirely by [Sibling 4] in [Country 1]. The applicant did not state any reason why that support could not continue if he returns to Malaysia.
Country information was put to the applicant that Malaysian economic growth was relatively good and unemployment relatively low. It was also put to him that older workers participate in the workforce in relatively high numbers, and Malaysia also had a reasonably good universal healthcare system. I said that these factors, in combination with his work history and the ongoing support of his family, may lead me to believe he could return to Malaysia, find some sort of work, and support himself. The applicant was given a chance to respond but indicated he had nothing to add.
Malaysia’s economy has rebounded after COVID and posted 22 year high in 2022. Last year growth was almost 4%[8]. In the first quarter of 2024, growth was fast than expected, with GDP rising 4.2%. The Central Bank says growth is expected to remain strong[9]. In April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic. There are labour shortages in many sectors, and small, medium and large enterprises are highly reliant on migrant labour[10]. As noted above, Malaysia has a relatively good universal healthcare system[11].
[8] “Malaysia's economy likely expanded in Q4 but outlook cloudy”, Rozanna Latiff, Reuters, 19 January 2024
[9] Malaysia's economy grows faster than expected, inflation risks cloud outlook | Reuters
[10] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, 20240624113833
[11] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, 20240624114558; >
Also as noted above, information was also put to the applicant that older persons still participate in paid work in significant numbers in Malaysia. Looking at workforce participation by groups of workers who are older than the applicant, around 40% of people aged 60 – 64 still participated in the workforce, and the workforce participation rate of those workers aged over 55 years of age had risen in recent times[12]. The official retirement age remains 60 years of age[13]. There were national programs in place to support older workers in the workforce[14], and a recent survey showed that 79% of Malaysian firms were open to employing older workers[15].
[12] “The Future of Work in Malaysia”, myForesight, 7 October 2022
[13] “Malaysia discovers new ways to empower the ageing workforce”, The Economic Times, 3 October 2023
[14] Ibid
[15] “When old is gold in the workplace”, Gerard Gimino, The Star, 21 April 2024
Given all of the above, I am satisfied that the applicant would be able to return to Malaysia, find work, and at least subsist.
I am not satisfied that the applicant is gay or that he would be persecuted on the basis of his sexuality. I am not satisfied he faces any harm on return to Pakistan on the basis of his sexuality, or for any other reason. I am satisfied that the applicant would be able to find employment and subsist in Malaysia and that he would also receive support from [Sibling 4] and other siblings.
For the reasons given above, the Tribunal is not 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 does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
I have previously found that the applicant would not face a real chance of harm in Malaysia for the reasons put forward (or on any other basis). I rely on the same reasoning in finding that he would not face a real risk of significant harm for those (or any other reasons) on return to Malaysia.
Although the applicant has claimed he has nothing to go back to and would be unable to find work in Malaysia, I do not accept that is the case for the reasons referred to above. The applicant did not put forward any reason why he would be denied employment with the intention of causing him harm. Given his work history, familial supports, and the other factors (such as the employment outlook in Malaysia) cited above, I am satisfied he could find some sort of work and subsist on return to Malaysia.
The applicant has not put forward any other claims that would engage the complementary protection criteria.
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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 10 September 2025
Representative: Rajinder Singh Bassan – Bassan Lawyers and Associates
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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