Asq18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 351
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ASQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 351
File number(s): MLG 416 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 24 April 2024 Catchwords: MIGRATION – application for judicial review – Protection (subclass 866) visa – where the applicant and her partner, ASR18, had their applications for review heard by the Tribunal at the same time – where Administrative Appeals Tribunal affirmed decision of first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 – whether Tribunal failed to consider relevant country information – found the country information was not relevant to the applicant and thus did not need to be considered by Tribunal – whether the Tribunal erred by making a finding that was illogical or irrational – found the Tribunal’s reasoning was clear and intelligible – found no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 474, 476
499(1), s 499(2A)
Federal Circuit Court Rules 2001 r 44.12
Ministerial Direction No 56
Cases cited: Craig v South Australia (1995) 184 CLR 163
DPK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 776
MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v MIMIA [2004] FCAFC
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Plaintiff S183/2021 v Minister for Home Affairs (2022) 178 ALD 289
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of hearing: 18 March 2024 Place: Melbourne Counsel for the Applicant: Mr Barron Solicitor for the Applicant: Lander & Rogers Lawyers Counsel for the First Respondent: Mr Barrington Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 416 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASQ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1.The Amended Application filed 19 February 2024 be dismissed.
2.The Applicant pay the First Respondent’s costs in an amount to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
Before the Court is an Amended Application filed on 19 February 2024, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 25 January 2018. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Protection (subclass 866) visa.
CONTEXT
The applicant is a citizen of Malaysia.
On 11 April 2016 the applicant entered into Australia on a Visitor UD-601 visa.
On 1 June 2016, the applicant applied for a Protection (subclass 866) visa (Visa). The applicant’s claims were set out in her Visa application. Relevantly, the applicant claimed that:
(1)she left Malaysia because of the growing economic downturn;
(2)she does not have high school qualifications so it is difficult for her to get a good job;
(3)her parents are no longer working due to their age and health and rely on their children to support them;
(4)she has six siblings and only three of the children in the family have held employment and the amount they collectively receive has not been sufficient to cover all the family expenses;
(5)she has no savings for her future or in case of an emergency and if she were to return to Malaysia she would face unemployment and a dark future;
(6)she has not experienced any harm in Malaysia and does not believe she will be harmed or mistreated if she returns to Malaysia;
(7)she did not attempt to move and does not believe she could relocate if she returned as the laws are the same throughout the country; and
(8)she does not think the authorities can protect her as the people in Malaysia are subject to the same government laws.
On 21 October 2016 the Delegate refused to grant the applicant the Visa.
On 9 November 2016, the applicant applied to the Tribunal for review of the Delegate’s decision.
On 8 November 2017, the Tribunal emailed the applicant inviting the applicant to attend an in-person hearing on 8 December 2017 at 9.30am. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 12 November 2017 the applicant emailed the Tribunal a completed ‘Response to hearing invitation’ form in which she confirmed she would participate in the hearing. The form also indicated that the applicant was in a same-sex relationship, that she came to Australia from Malaysia with her partner (ASR18), and that she would require her partner to appear at the hearing as a witness.
On 8 December 2017 the applicant and her partner appeared before the Tribunal at a joint hearing and gave evidence with the assistance of an interpreter in the Malay and English languages.
On 15 December 2017, the Tribunal emailed the applicant inviting the applicant to attend a further hearing on 22 January 2018 at 9.00am.
On 22 January 2018 the applicant attended a further hearing before the Tribunal and gave evidence with the assistance of an interpreter in the Malay and English languages.
On 25 January 2018 the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa. On 29 January 2018, the Tribunal sent a copy of its decision and reasons to the applicant’s email address.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 25 January 2018 (Tribunal Decision).
At paragraph [10] of the Tribunal Decision, the Tribunal summarised the applicant’s claims as follows:
The applicant is a 29 year old woman from Kota Kinabalu, the capital of Sabah province. She claims to fear returning to Malaysia because of the economic downturn and not having a high school certificate. Her income before coming to Australia was being drained by her expenses including sharing the costs of supporting her siblings and parents. Furthermore, the applicant is perceived to be a tom boy because of the clothes she wears and is a lesbian in a same sex relationship.
At paragraph [19] of the Tribunal Decision, the Tribunal made findings accepting that the applicant is a lesbian and in a same sex relationship and had been since 2013. Further, the Tribunal accepted that the applicant and her partner openly expressed their relationship in public in Malaysia and received looks and sometimes verbal taunts, and that while in Australia they are able to express their relationship more openly. Further, at paragraph [20] of its decision, the Tribunal accepted that people in Malaysia would perceive the applicant as a tom boy.
At paragraphs [21] – [22] the Tribunal considered the applicant’s economic circumstances. The Tribunal did not accept that there is a real chance or a real risk that the applicant would face serious or significant harm in the form of poverty, destitution or an inability to cater for herself due to the economic circumstances in Malaysia.
At paragraphs [23] – [26] the Tribunal considered the applicant’s claims to fear harm from her family and society for reasons of being in a same sex relationship. The Tribunal found that the applicant’s fears of being embarrassed or isolated if her family knew of her relationship were speculative and did not amount to serious or significant harm. The Tribunal noted that the applicant had shown herself to be capable of finding employment and as such could live on her own if she were isolated from her family. Further, the Tribunal found that there was not a real chance or a real risk of being disowned by her family if they found out about her relationship.
At paragraphs [27] – [32] the Tribunal considered the applicant’s claims to fear harm from people in Malaysia for reason of being in a same sex relationship. The Tribunal found that the harm the applicant faced in the past, being one or two verbal taunts over two years, would increase in incidence but not intensity if the applicant were to return to Malaysia and conduct herself in her relationship as she has in Australia, and that this would not amount to serious or significant harm.
At paragraph [33] the Tribunal found the applicant does not face a real chance of serious or a real risk of significant harm in the reasonably foreseeable future if she were to return to Malaysia for reasons of being perceived as a tom boy.
Accordingly, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under sub-ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act). Further, the Tribunal found there was no suggestion that the applicant satisfied s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfied s 36(2)(a) or (aa) and who held a protection visa.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal Decision on 19 February 2018. The applicant filed an Amended Application on 19 February 2024.
The Amended Application contains the following three grounds for judicial review (without amendment):
1.The decision of the Second Respondent is affected by jurisdictional error on the basis that it failed to comply with Ministerial Direction No 56, and thus failed to comply with s 499(2A) of the Migration Act 1958 (Act), by failing to take into account relevant country information.
PARTICULARS
a.The Second Respondent was required, under s 499(2A) of the Act, to apply directions issued by the First Respondent under s 499(1).
b.Ministerial Direction No 56 required the Second Respondent to consider relevant country information in the course of its assessment of the Applicant’s claims.
c.The Second Respondent reached the conclusion that the Applicant was likely to be perceived as a “tom boy” in Malaysia if returned there.
d.The Second Respondent failed to consider, in assessing whether the Applicant would experience harm as a result of being perceived as a “tom boy in Malaysia”, relevant country information relating to the treatment of transgender person, persons who cross-dressed or persons who did not conform to gender expectations.
e.Such information was available to the Tribunal in a country report on Malaysia prepared by the Department of Foreign Affairs and Trade dated 19 July 2016.
f.The failure to consider that information in the context of the Applicant’s claim represented a failure to comply with the direction, and thus a failure to comply with s 499(2A) of the Act.
2.Further or alternatively to ground 1, the decision of the Second Respondent is affected by jurisdictional error on the basis of its failure to give consideration to a relevant consideration.
PARTICULARS
a.The Applicant relies on particulars (c) to (e) in relation to ground 1 above.
b.In circumstances where the Second Respondent accepted that the Applicant would be perceived as a “tom boy” if returned to Malaysia, its failure to consider the Department of Foreign Affairs and Trade country information of 19 July 2016 constituted a failure to consider a relevant consideration.
3.The Second Respondent’s decision was affected by jurisdictional error as it reached a conclusion that was illogical or irrational.
PARTICULARS
a.The Applicant gave information to the Tribunal that she had a limited education and work history, and had never lived outside of a family home in Malaysia.
b.The Tribunal accepted the Applicant’s narrative regarding her work and education history.
c.The Tribunal nevertheless concluded that if the Applicant were returned to Malaysia, and if she were alienated from her family, she would be able to find work and live independently, with or without her partner.
d.That conclusion was contradictory to the information available to the Tribunal. It was irrational or illogical.
e.The conclusion was used to underpin the Tribunal’s conclusions regarding the lack of a risk of harm to the Applicant if she were returned to Malaysia. It was therefore a conclusion reached on the way to the determination of a jurisdictional fact.
f.The illogical or irrational finding therefore constitutes a jurisdictional error.
The applicant also filed the following material:
(1)an affidavit filed on 19 February 2018 which annexed the Tribunal Decision; and
(2)written submissions filed on 19 February 2024.
The Minister filed a Response on 9 March 2018. The Response contained the following grounds:
1.The application for judicial review does not provide any particulars or any legal ground of review.
2.The application invites the Court to undertake a review of the merits of the Tribunal’s decision. To engage in fact finding about the merits of the applicant’s case is no part of the function of the Court: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v MIMIA [2004] FCAFC at [10].
3.The application for judicial review does not establish any jurisdictional error in the decision of the Administrative Appeals Tribunal dated 25 January 2018.
4.The application for judicial review does not raise an arguable case for the relief claimed and should accordingly be dismissed pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001.
The Minister also filed written submissions on 4 March 2024.
The Hearing
The hearing took place on 18 March 2024.
As set out above, the applicant is the partner of ASR18.
ASR18’s Application for judicial review of the Tribunal’s decision affirming a decision of a delegate of the Minister to refuse to grant ASR18 a Protection (subclass 855) visa was heard immediately after the present Application.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal Decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Grounds 1 and 2
Applicant’s submissions
By Ground 1 the applicant contends that the Tribunal erred by failing to comply with Ministerial Direction No 56 (Direction 56) which required the Tribunal to have regard to relevant country information, and thereby failed to comply with s 499(2A) of the Act.
The applicant submits that the Tribunal failed to consider, in assessing whether the applicant would experience harm as a result of being perceived as a “tom boy” in Malaysia, relevant country information relating to the treatment of transgender persons, persons who cross-dressed or persons who did not conform to gender expectations.
At paragraph [20] of the Tribunal Decision, the Tribunal found that people in Malaysia would perceive the applicant as a tom boy. At paragraph [33] of the Tribunal Decision, under the heading “Consideration – For reasons of being a tom boy”, the Tribunal stated the following:
The applicant stated that she hadn’t experienced harm for reasons of being perceived to be a tom boy. No additional information was known to the tribunal to suggest that she may face harm in the reasonably foreseeable future for this reason. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future was she to return to Malaysia for the reason of being a tom boy.
(Court’s emphasis)
The applicant submits that, contrary to the Tribunal’s assertion, relevant country information was available to the Tribunal in a country report issued by the Department of Foreign Affairs and Trade (DFAT) on 19 July 2016 (2016 DFAT Report) under the heading “Transgender Individuals” (sections 3.95 – 3.99). The Tribunal made references to the 2016 DFAT Report in its reasons for decision. The applicant submits that despite the wording of the heading, sections 3.95 – 3.99 of the 2016 DFAT Report deal more broadly with issues faced by persons who may be perceived as cross-dressers, or as otherwise not conforming to traditional gender archetypes. The applicant submits that those sections were therefore relevant to the applicant’s claims and by failing to consider them the Tribunal fell into error.
The applicant relies on DPK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 776 (DPK17) and Plaintiff S183/2021 v Minister for Home Affairs (2022) 178 ALD 289 (Plaintiff S183/2021).
By Ground 2 the applicant submits that the Tribunal failed to have regard to the sections of the 2016 DFAT Report which dealt with the risks posed by transgender persons and persons who cross-dress and thereby failed to have regard to a relevant consideration. The applicant submits that Ground 2 is founded on the same factual basis as Ground 1.
Minister’s submissions
The Minister submits that Ground 1 and 2 must be rejected.
The Minister submits that the 2016 DFAT Report does not refer to transgender individuals and also, separately, cross-dressing individuals. Rather, the Minister submits the 2016 DFAT Report refers only to transgender individuals, and within that class, transgender women who cross-dress (that is, individuals who are born male, identify as female, and dress as female). The Minister submits that the applicant did not claim to belong to either of these categories of persons.
Accordingly, the Minister submits that the information contained in the 2016 DFAT Report under the heading “Transgender Individuals” was not relevant to the applicant and therefore did not need to be considered by reason of Direction 56.
For the same reasons, the Minister submits that it was not mandatory for the Tribunal to consider sections 3.95 – 3.99 of the 2016 DFAT Report and, accordingly, the failure to do so does not give rise to any error on the Tribunal’s behalf.
Consideration
It is not contested that if sections 3.95 – 3.99 of the 2016 DFAT Report (Report Sections) were relevant to the applicant’s claim, a failure by the Tribunal to consider that information would amount to jurisdictional error.
The Report Sections are headed “Transgender Individuals”. The Report Sections are set out in full in Annexure A to these reasons. Section 3.95 provides as follows:
Cross-dressing is not technically illegal, however transgender individuals are arrested under the Minor Offenses Act for public indecency and immorality and, where, Muslim under the sharia-based law for impersonating women. These laws are predominantly applied to biological men dressing as women. The National Fatwa Council banned gender reassignment surgery in 1983 and the Registration Department stopped the practice of changing names and gender for transgender individuals on national identity cards.
As to the remainder of the Report Sections, in summary:
(1)section 3.96 notes that transgender Muslim women, identifiable as male from their national identity card, are occasionally arrested by the state religious authorities or the Royal Malaysian Police;
(2)section 3.97 details the arrest and court proceedings of a number of high profile transgender women and their associates;
(3)section 3.98 notes that state religious officials have been known to subject transgender women to physical and sexual violence and degrading treatment while in custody. It also notes that transgender women are held in male prisons and have occasionally been subjected to sexual assault by wardens and other detainees. It also notes that societal violence occurs; and
(4)in section 3.99 DFAT assesses that “transgender individuals, especially Muslim men who either cross dress as women or identify as transgender would face a high level of official and societal discrimination and are at moderate risk of societal violence”.
The applicant submits that the use of the word “predominantly” in section 3.95 of the 2016 DFAT Report necessarily means that the laws referred to are not exclusively applied to transgender women. I accept that submission and the Minister does not contend otherwise. Further, in DPK17 at [30] Snaden J found, in the context of a claim by an applicant who was born female, presented as a male, and self-identified as a male, homosexual and transgendered, that although these sections were focused more on Islamic men than non-Islamic women “it was not peculiar to either category”.
However, I reject the submission that sections 3.95 – 3.99 of the 2016 DFAT Report are relevant to the applicant, notwithstanding that she does not describe herself as a man or as transgender or identify as such, because, as is contended by the applicant, it comments more broadly on matters including cross-dressing and the consequences of perceived gender non-conformity which were matters raised by the applicant’s claim. When read as a whole, I consider the Report Sections are, as submitted by the Minister, directed at transgender persons and not others who may adopt a more gender non-conforming appearance (such as the applicant) or persons who cross-dress but are not transgender. Firstly, as set out above, the remainder of section 3.95 addresses the banning in 1983 by the National Fatwa Council of gender re-assignment surgery and the stopping by the Registration Department of changing names and gender for transgender individuals on national identity cards. In my view, section 3.95 is therefore directed only to transgender persons (be they men or women). Secondly, as also set out above, the content of sections 3.96 – 3.98 are directed to matters to do with transgender women. The applicant is not a transgender woman. Further, in section 3.97 all of the references to cross-dressing are in the context of cross-dressing by a transgender woman. Finally, section 3.99 is by way of conclusion and identifies among transgender persons Muslim men who cross-dress as women or who identify as transgender, as being at particular risk. Accordingly, the 2016 DFAT Report was not referring to transgender persons and separately, persons who cross-dress. Rather, the 2016 DFAT Report was referring to transgender persons, and within that group of persons, cross-dressing transgender women.
The applicant did not claim to belong to either of these categories. At no stage did the applicant claim to fear harm by reason of being transgender (or being perceived to be transgender), nor a transgender person who cross dressed. Accordingly, the Report Sections were not “relevant” and did not need to be considered by the Tribunal. As such, a failure to do so cannot give rise to jurisdictional error.
In oral submissions the applicant submitted that even if sections 3.95 – 3.99 are primarily directed at transgender persons they ought have been considered as country information provides “context”. In support of this submission the applicant relies upon the comments of Justice Gordon in Plaintiff S183/2021 where her Honour said at [59]:
The Minister submits that "[i]n circumstances where the delegate disbelieved all of the plaintiff's claims, the country information had no relevance". That submission misunderstands the nature and potential relevance of country information. Such information provides context for the assessment of a visa applicant's claims. It does not matter that, in the present case, the delegate was not satisfied that the plaintiff's claim to be a lesbian – as distinct from her claims to have suffered harm – was credible. The inquiries are not siloed. If the plaintiff's claims to have suffered harm were (or were not) consistent with the country information, that would be relevant not only to the plaintiff's claims to have suffered harm but also to the plaintiff's claim to be a lesbian.
It is apparent from the above that the comments made by her Honour in Plaintiff S183/2021 were made in circumstances that are entirely distinguishable from the present. Here, the Tribunal accepted that the applicant was a lesbian, in a same sex relationship with her partner and would be perceived as a tom boy in Malaysia. At paragraphs [27] – [32] of its decision the Tribunal considered the applicant’s claims to fear harm from people in Malaysia for reason of being in a same sex relationship and at paragraph [33] of its decision considered the applicant’s claims to fear harm for reason of being perceived as a tom boy.
Sections 3.89 – 3.94 of the 2016 DFAT Report are headed “Sexual Orientation and Gender Identity” and address matters in relation to the lesbian, gay, bisexual, transgender and intersex (LGBTI) community in Malaysia, including provisions of the Penal Code which provide that anal and oral sex are illegal in Malaysia, criticism by the Malaysian government of LGBTI individuals, the banning of public demonstrations in support of the LGBTI community, and corrective behaviour programs. At section 3.94 the 2016 DFAT Report concludes that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia, with the level and frequency of discrimination differing depending on the socio-economic status, the religious and the geographic location of the individual. At paragraph [28] of its decision the Tribunal referred to section 3.94 of the 2016 DFAT Report saying:
Country information from DFAT suggests that geographic location plays a role in the level of risk of social and official discrimination. As such I have undertaken location specific country information and the applicant’s past experiences to inform an assessment of the level of risk and the extent of harm.
The Tribunal therefore had regard to specific relevant country information in relation to the claims advanced by the applicant and their assessment. The question of “context”, as it arose before her Honour in Plaintiff S183/2021, therefore does not arise in the matter presently before the Court.
Grounds 1 and 2 therefore disclose no jurisdictional error on the Tribunal’s behalf.
Ground 3
Applicant’s submissions
By Ground 3, the applicant submits that the Tribunal erred by making a finding regarding the applicant’s economic prospects in Malaysia that was unreasonable or illogical. The applicant submits that it was illogical or irrational for the Tribunal to draw the conclusion that the applicant had both limited employment prospects if returned to Malaysia and the ability to live and work independently if returned to Malaysia.
The applicant submits that there is a “clear contradiction” between the Tribunal accepting her past employment and economic history and a finding that she could live independently if returned to Malaysia.
Minister’s submissions
The Minister submits that Ground 3 does not demonstrate irrationality or illogicality on behalf of the Tribunal.
The Minister submits that the Tribunal’s reasoning was clear and intelligible and unsurprising.
Consideration
As was conceded by the applicant, the characterisation, as irrational or illogical, of a finding made as part of the reasoning process underpinning a conclusion on a jurisdictional fact, is not easily made. The applicant must do more than merely disagree with the reasoning or resulting finding: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [124] per Crennan and Bell JJ. Engaging in a process of reasoning that is illogical or irrational is taken to refer to “extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [148].
At paragraph [14] of the Tribunal Decision, the Tribunal said:
The applicant claimed that it was difficult to find work. That she hadn’t completed any schooling beyond year 9 made it particularly difficult. She had worked as a waitress in a restaurant from 2014 until coming to Australia in 2016. Before that she worked odd jobs helping people in the markets. There are jobs, she explained, but it is difficult to save as her parents aren’t working and she has younger siblings who require support. I accept the applicant’s narrative of her employment circumstances.
At paragraph [15] of its decision, the Tribunal refers to the applicant moving into her partner’s family home approximately two months after they started their relationship and living there for about 19 months. The Tribunal noted that the applicant would provide some money for her accommodation but there was no formal payment structure.
At paragraph [21] the Tribunal referred to country information about Malaysia’s unemployment rate, which was 3.4% and considered to be full employment. It was also put to the applicant that she had a job when she left Malaysia, to which the applicant responded that what she was earning was “not enough”.
At paragraph [22], the Tribunal did not accept that the applicant would be unable to find work to allow her to support herself, in circumstances where the applicant had shown herself to be able to find employment in Malaysia and the current situation in Malaysia was considered full employment.
At paragraph [26] the Tribunal said:
The applicant has shown herself to be capable of finding employment and as such could live on her own or with her partner if she was to be isolated from her family.
At paragraphs [35] – [36] of the Tribunal Decision, the Tribunal stated the following:
While being a lesbian in a same sex relationship with an outward appearance of a tom boy decreases the likelihood of the applicant finding work or maintaining a job, I find that such circumstances nevertheless do not lead her to face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future was she to return to Malaysia.
Alternatively, looking at the impact of other factors to harm she may face as a result of her sexual orientation I do not accept that struggling to find work changes the real chance or real risk harm equation. Since I have found that as a tom boy she has not faced any harm nor is there available evidence to suggest her risk profile as a lesbian in a same sex relationship would change I find that when considering the risks she faces as a lesbian alongside economic challenges and being a tom boy she does not face a real chance of serious harm or a real risk of significant harm.
Accordingly, whilst the Tribunal accepted that the applicant may have difficulty in finding work, the applicant’s own evidence was that there were jobs. Further, she had a job for the two years prior to leaving Malaysia in 2016 and lived with her partner and her partner’s family for 19 months. She contributed money towards her accommodation with her partner’s family. The applicant therefore had a demonstrated capacity to obtain and maintain employment and live outside her family, notwithstanding that it may be difficult.
In those circumstances, I find nothing illogical or irrational in the Tribunal’s finding that the applicant could live independently if returned to Malaysia. I consider that the Tribunal’s reasoning was clear and intelligible and the finding was available to it on the material before it.
In oral submissions the applicant submitted that reference to the low unemployment rate in Malaysia does not render the conclusion rational. The applicant submitted that the fact that the economy was doing well did not demonstrate that the applicant was doing well. Even if that submission be accepted, it is clear that this was not the only basis upon which the Tribunal reached its conclusion. In circumstances where the evidence before the Tribunal was that the applicant had obtained and maintained employment for the two years prior to leaving Malaysia, had lived away from her family for about 19 months and contributed money for her accommodation in that period, I do not consider that the additional reference to the low unemployment rate in Malaysia, renders the Tribunal’s finding irrational or illogical.
Accordingly, Ground 3 discloses no jurisdictional error on the Tribunal’s behalf.
It follows that the grounds contended for by the applicant do not disclose any jurisdictional error. The application therefore cannot succeed.
DISPOSITION
For the above reasons, the Amended Application must be dismissed.
The Minister seeks an order that the applicant pay its costs. I shall order that the applicant pay the Minister’s costs in an amount to be fixed if not agreed.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 24 April 2024
ANNEXURE A
Transgender Individuals
3.95Cross-dressing is not technically illegal, however transgender individuals are arrested under the Minor Offenses Act for public indecency and immorality, and, where Muslim, under sharia-based law for impersonating women. These laws are predominantly applied to biological men dressing as women. The National Fatwa Council banned gender reassignment surgery in 1983 and the Registration Department stopped the practice of changing names and gender for transgender individuals on national identity cards.
3.96 Where transgender women were identifiable as Muslim, and as male, as demonstrated on their national identity card, they were occasionally arrested by state religious authorities or the Royal Malaysian Police. While the majority of arrests occurred in public places, state religious officials occasionally conducted raids on private premises. Members of the Royal Malaysian Police had on occasion accompanied such officials.
3.97 In October 2015, regarding the case of three Muslim transgender women from Negeri Sembilan, the Federal Court reversed a lower court ruling that had found Negeri Sembilan’s state-level prohibition on men dressing as women to be unconstitutional. The Federal Court advised the defendants to exhaust their case in the sharia court, where it had originated. In June 2015, nine transgender women were convicted by a sharia court in Kelantan state under cross-dressing prohibitions. In 2011, a transgender woman was arrested for cross-dressing and was sexually assaulted by religious department officials in Negeri Sembilan. In 2012, religious department officials forcibly entered the home of a transgender woman in Seremban. The woman, a non-Muslim—as confirmed by a check of her national identity card—was not arrested. However, her Muslim transgender friends were arrested for cross-dressing.
3.98 State religious officials have been known to subject transgender women to physical or sexual violence and degrading treatment while in custody. Transgender women are held in male prisons and have occasionally been subjected to sexual assault by wardens or fellow detainees. Societal violence also occurs. On 10 September 2015, Malaysia’s most prominent transgender activist, Nisha Ayub, was brutally beaten by two Indian Malaysian men with iron bars outside her apartment building. She reported the hate crime to police but no suspects have been identified.
3.99 DFAT assesses transgender individuals, especially Muslim men who either cross-dress as women or identify as transgender would face a high level of official and societal discrimination and are at moderate risk of societal violence.
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