DEC18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 36
•25 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DEC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 36
File number: MLG 1745 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 25 January 2024 Catchwords: MIGRATION – Protection Visa – Where the Applicant is a gay man who alleged he had a well-founded fear of persecution if he returned to Malaysia – Where the Tribunal found that the Applicant could internally relocate within Malaysia – Whether the Tribunal failed to afford the Applicant a hearing in accordance with its statutory obligations because it did not identify the critical issue of internal relocation so that the Applicant could give evidence and present arguments as to that issue – Ground not made out – Whether the Tribunal failed to understand and evaluate important evidence that because the Applicant was a gay man he could not live in Malaysia without hiding his sexuality or modifying his behaviour – Ground not made out – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 5J, 36, 424A, 425
S395/2002: Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, [1194]
Cases cited: AppellantS395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103
BIM16 v Minister for Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 453
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074
DQU16 v Minister for Home Affairs and Another (2021) 273 CLR 1; [2021] HCA 10
Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; [2007] FCAFC 162
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 485
Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304; [2022] HCA 17
Re-Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 17; [2007] HCA 40
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1; [2008] FCAFC 138
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of last submissions: 22 November 2023 Date of hearing: 22 November 2023 Place: Melbourne Counsel for the Applicant: Mr A Aleksov Solicitor for the Applicant: Bardo Lawyers Counsel for the Respondents: Ms J Lucas Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 1745 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEC18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
25 JANUARY 2024
THE COURT ORDERS THAT:
1.The First Respondent’s name is changed to “Minster for Immigration, Citizenship and Multicultural Affairs.”
2.The application is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.
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
JUDGE CHAMPION:
INTRODUCTION
The Applicant challenges the Tribunal’s decision to refuse to grant him a protection visa. The Tribunal accepted that, because the Applicant is a gay man, he faced a real chance of persecution from his family if he returned to Malaysia. The Tribunal accepted that the Applicant’s brother had “beaten him” (CB159, [44]) because he was gay and that the Applicant’s father wanted to force him to marry a woman (CB159, [42]). Save for the evidence as to a real chance of persecution by his family members, the Tribunal held that there was no well-founded fear of state-sanctioned persecution even though the country information about Malaysia disclosed widespread discrimination against homosexual men. The Tribunal found that, insofar as state-sanctioned persecution was concerned, the “applicant did not provide any evidence of having been harassed or being subjected to harsh or violent treatment as a result of his homosexuality while in Malaysia” (CB159, [44]).
Even though the Tribunal accepted that there was a relevant fear of persecution from his family, the Tribunal refused to grant the Applicant a protection visa because it found the real chance of persecution did not relate to “all areas” of Malaysia within the meaning of s. 5J(1)(c) of the Migration Act 1958 (Cth). The Tribunal also found that it would be reasonable for the Applicant to relocate for the purposes of the complementary protection framework under s. 36(2B)(a). Because the Tribunal found that the Applicant could relocate internally within Malaysia to Kuala Lumpur or another urban centre away from his family where there was not a real chance of persecution and therefore was not a person to whom Australia owed protection obligations.
Ground 1 is that the Tribunal failed to identify the critical issue in the case – namely, internal relocation – with sufficient clarity and fairness and thereby failed to discharge its statutory obligation to conduct a meaningful and a fair hearing in accordance with s. 425(1) of the Act. The Tribunal made broad and detailed inquiries as to how the Applicant had lived in different geographical areas of Malaysia which inquiries were relevant to whether he could reasonably internally relocate. It did not have to identify the significance of the questions it put about how the Applicant had lived in different parts of Malaysia. Ground 1 has not been made out.
Ground 2 is that the Tribunal failed to consider or misunderstood objectively important evidence as to whether the Applicant “lived openly as a gay person” in Malaysia and would have to hide his sexuality or modify his behaviour if he returned. The Tribunal identified the relevant claims and evidence. It evaluated and assessed the evidence in a way which was reasonable. Ground 2 has not been made out.
I will dismiss the application. My more detailed reasons follow.
BACKGROUND AND PROCEDURAL HISTORY
On 15 July 2016 the Applicant applied for a Protection (Subclass 866) Visa because he is a gay man who feared harm because of his sexuality should he return to Malaysia.
On 20 December 2016, following a delegate for the First Respondent refusing the Applicant’s protection visa application, the Applicant made an application to the Tribunal for review of the delegate’s decision (CB68).
Tribunal Transcript
An affidavit of Ms Liuzhuo Chen, which annexed the Tribunal transcript, was read in this court, and the Transcript was tendered: Ex A1.
On judicial review, a court cannot “employ” the Tribunal transcript to supplement and expand the Tribunal’s stated reasons: AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103, [57]-[60].
It is nonetheless in order to set out certain transcript references as to the context of how the Applicant framed his case and as the context of the Tribunal’s reasons.
Fear of persecution by his family
The Tribunal transcript discloses that the Applicant framed his claim for protection in terms of risk from his family, not because of risk of official discrimination against the LGBT community identified in the Malaysia country information (CB154-158, [22]–[37]). As to family persecution, I refer to the following exchange (T30:L45–T31:L1):
Tribunal:So the claim for protection you're making is not because you feel you're being persecuted in Malaysia because you're gay but it's because you'll be persecuted because your family will force you to marry. Is that right?
Applicant: Yes.
Internal relocation
As will become apparent later in these reasons, I regarded the Tribunal’s broader questions (beyond the specific references extracted below) as to how the Applicant had lived in different regions of Malaysia in different parts of his life as relevant to the critical issue of internal relocation. Nonetheless, there were the following specific references to internal relocation in exchanges before the Tribunal.
At (T30:L8-12):
Tribunal:Can I ask you, why do you have to go back to – you know, to your family? Why can't you go to somewhere like Kuala Lumpur or somewhere like that?
Applicant:Because my family back home is little bit like gangster, [….]
At (T33:L24-46) there was the following exchange:
Tribunal: It sounds like other than the fact your family was opposed to it, it sounds like when you were in Klang you had quite an open lifestyle, you know, you had quite a pleasant, you were openly gay and active within the community. Would that be right?
Applicant:In Klang?
Tribunal:Yeah, when you were in Klang?
Applicant:Yeah, if I'm going, like I'm staying with Klang but I have to behaviour myself (indistinct) in here I can wear any dress (indistinct) my lifestyle, and my hairstyle and then (indistinct) like this and then I wearing like I don't normally like wearing like little bit bright and (indistinct) and everything, here totally different (indistinct) totally different. So here I can walk a little bit like shy one and then little bit like soft one, no-one give me any comments but in Malaysia there are so many comments when I (indistinct) because in Malaysia they never understand their feelings, their (indistinct), they're also a human being, there are (indistinct) and everything, they are only thinking, we are boys, only behaviour like boys. I want my life, I want be like – I'm really happy to be like this, I'm really proud of myself. In here, on my (indistinct) everyone know I'm a gay even though a girl and boy, I'm talking with everyone normally.
At (T39:L39–T40:L16) the Applicant gave evidence to the effect that he would have to be a “fake person” and modify his lifestyle, clothes and gait if he returned to Malaysia. As the Applicant relied upon that passage specifically as to Ground 2, I have extracted it in my consideration of that ground.
The Tribunal decision
The Tribunal identified the Applicant’s protection claims as follows (CB153, [12]):
12.The applicant’s protection claims are detailed in his application for a protection visa dated 15 July 2016 and summarised in the delegate’s decision dated 20 December 2016 as follows:
(a) The applicant claims he is gay. ….
[…]
(d) He thinks if he returns to Malaysia, his family will force him to marry and he cannot live his own life. If he marries for his family’s happiness, he cannot be happy himself. He will meet his friends again and they will avoid him again.
(e) He claims no prior harm in Malaysia.
(f) He did not try to relocate within Malaysia because same sex love is illegal and unwelcomed. Whenever he goes in Malaysia, they will treat him in the same way; people will tease him.
[…]
(j) He did not attempt to move to another part of the country because he did not know where to go and they could still find him.
The Tribunal’s assessment of the Applicant’s claims
The Tribunal found the Applicant to be “creditable” (CB159, [42]). The Tribunal accepted that the Applicant was a member of a “particular social group” of “Malaysian homosexual males” within the meaning of s. 5J(1)(a) of the Act (CB159, [42]). The Tribunal accepted that “his family will force him to marry a female” if he returned to Malaysia (CB159, [42]). The Tribunal accepted that the Applicant’s brother “had beaten him on a number of occasions” because of his sexuality (CB159, [44]).
Although the Tribunal’s finding at [43] is controversial (and I will return to it in Ground 2 below), I note that the Tribunal found as follows (CB159-160, [43]-[44]):
43. The applicant’s evidence was that in Malaysia he did not hide the fact that he was homosexual. In fact, his evidence was that he lived openly as a gay person. He attending [sic] clubs and socialised freely, having discussed his lifestyle and sexuality with work colleges [sic], friends and family members.
44. In addition, save for the fact that his brother had beaten him on a number of occasions the applicant did not provide any evidence of having been harassed or being subjected to harsh or violent treatment as a result of his homosexuality while in Malaysia. In fact, his evidence was that away from his family he socialised freely and enjoyed the company of his friends. Therefore, save for the fact that his father and brother objected to his lifestyle and his sexuality, the applicant lived in Malaysia uninfluenced by any fear of harm he may suffered [sic] as a result of his sexuality.
Because the Applicant had been beaten by his brother and threatened by his father “for the purposes of forcing him to marry” the Tribunal accepted that he had a well-founded fear of persecution and was person to whom Australia owed protection obligations under s. 36(2)(a) of the Act (CB160, [45]). The Tribunal’s conclusion as to s. 36(2)(a) of the Act was subject to its further reasons in which it concluded that the Applicant could reasonably relocate internally within Malaysia to an urban centre away from his family, thereby avoid that well-founded fear of persecution and, as a result, the Tribunal refused to grant him a protection visa.
Internal relocation
The Refugees Convention definition
The Tribunal considered whether the persecution claimed related to “all areas” of Malaysia: s. 5J(1)(c) (CB160-161, [46]–[51]).
Even where the feared persecution is localised rather than in all areas of a country, a person will not be excluded from refugee status because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him or her to relocate: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 17; [2007] HCA 40, [24].
As noted, the Tribunal concluded that the Applicant’s feared harm did not relate to all areas of Malaysia and that there was not a real chance that the Applicant would suffer serious harm if he relocated to a large urban area such as Kuala Lumpur (CB160-161, [50]-[51]).
The complementary protection regime
Internal relocation was also relevant under the complementary protection regime as to whether under s. 36(2B)(a) of the Act “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” (emphasis added) and the Tribunal dealt separately with this issue. It held (CB161, [53]):
In circumstances where the applicant has previously worked in other parts of Malaysia away from his local village, it is not unreasonable for the applicant to relocate to another part of Malaysia.
The Tribunal concluded that the real risk of significant harm to the Applicant was localised to Kulim, Kedah, Malaysia the local village where his family lived (CB161, [54]). The Applicant does not challenge that this finding was open to the Tribunal.
Is there any relevant difference between internal relocation under the Refugee Convention and under the complementary protection regime?
Because relocation for the purposes of s. 5J(1)(c) has been interpreted to apply only as to reasonable relocation (SZATV, above) there is no substantive difference in the relevant considerations under the Refugees Convention and the complementary protection framework as to internal relocation even though there are different statutory provision in ss. 5J(1)(c) and 36(2B)(a) of the Act. In BIM16 v Minister for Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 453 Anastassiou J held that the principles as to internal relocation applied equally under the Refugees Convention and under the complementary protection framework. His Honour said at [49] vis-à-vis internal relation under the Refugees Convention and under the complementary protection framework: “it seems uncontroversial that the same principles apply equally to a consideration of relocation under the complementary protection framework”.
As to internal relocation, the Tribunal concluded as follows (CB160-161, TD[49]–[50]):
49.[…] As such, the Tribunal finds that it would be reasonable for the applicant to relocate to a city in Malaysia, such as Kuala Lumpur, to avoid the risk of such harm. As such the tribunal finds that there is no real chance the applicant will suffer serious harm by reason of the fact that the harm claimed does not relate to all areas of Malaysia.
50.Kuala Lumpur is approximately 1.76 million people all from a diverse range of religions and cultural backgrounds. The applicant is single, resourceful and educated having previously lived away from home. His evidence was that when he was living in Kelang he lived openly as a gay person, attending clubs and socialising freely discussing his lifestyle and sexuality with work colleges and friends. Accordingly, based on the applicant’s previous experience, the Tribunal is confident that the applicant would be able find opportunities and to support himself in a large city such a Kuala Lumpur. Therefore, the Tribunal finds that is not a real chance that the applicant will suffer serious harm in the event he returns to Malaysia if he relocates to a large urban area such as Kuala Lumpur
Conclusion
Because of its conclusions as to internal relocation, the Tribunal affirmed the delegate’s decision to refuse to grant the protection visa (CB150-166).
JUDICIAL REVIEW APPLICATION
By his amended application the Applicant presses two grounds of judicial review.
Ground 1: Did the Tribunal fail adequately to notify the Applicant that relocation was in issue, and the criteria at play on that issue, and thus fail to comply with s. 425(1)?
The Applicant submitted that the Tribunal failed to identify that relocation was the critical issue in the case “with sufficient clarity and fairness to enable the Applicant to give meaningful evidence and arguments on the issue, and thereby failed to afford the Applicant a hearing as required by s. 425(1)”: AS, [3]
Legal principles
Ground 1 was a procedural fairness ground. As to what procedural fairness requires in any given case “the guiding principle is one of fairness”: Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 485, [24], and “the concern of the law is to avoid practical injustice”: Re-Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6, [37].
The Applicant referred to SZBEL v Minister for Immigration And Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 and its approval of the statements of principle in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074. In SZBEL, the Court approved and set out two excerpts from Alphaone (at [29] and [31]). In Alphaone, the Court had held (at 590) that the decision-maker had to “identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it was made”. Further, in Alphaone the Court (at 592) had held that the rules of procedural fairness would “ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues” (emphasis added).
In SZHKA v Minister for Immigration And Citizenship (2008) 172 FCR 1; [2008] FCAFC 138 Gray J had held at [7] that: “because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant’s case” (emphasis added).
In Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; [2007] FCAFC 162 at [88] the Court held:
The short answer to the applicant’s submission based upon SZBEL …. is that s 425 does not require the RRT to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go. That is not what is required by SZBEL …., and is an attempt to import the requirements of s 424A(1) into s 425.
[Emphasis added]
Section 424A of the Act obligates the Tribunal to notify an applicant of certain adverse information. With reference to the statutory text and those authorities set out above, the parties appeared to agree that the Tribunal’s procedural fairness obligation under s. 425(1) required it to identify the relevant issues and to provide a meaningful opportunity to the Applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review. At issue was whether the Tribunal had met its obligations in this case.
The Applicant submitted that the Tribunal did not provide “adequate notification” (AS, [6]) of internal relocation as a relevant issue and, because it cast its questions in generic terms, it “did not identify for the applicant the nature of the relocation issue” (AS, [7]). As to the “generic” nature of the Tribunal’s questions the Applicant referred to two of the excerpts from the Tribunal transcript extracted above in which the Tribunal expressly raised internal relocation with the Applicant ([30], [39]). The Applicant orally refined his submission to contend that the error was not merely a failure to put the Applicant on notice of a dispositive issue but to identify the nature of the relocation issue as a dispositive issue.
I do not accept the Applicant’s submission.
First, with reference to the relevant passages from Alphaone above, internal relocation was an issue “from the terms of the statute”: see, ss. 5J(1)(c) and 36(2B)(a). The fact that internal relocation was an issue because of the terms of the statute shaped what was fair and what was required of the Tribunal by way of procedural fairness.
Secondly, the Applicant’s submission that “the question of relocation was not an issue in the delegate’s decision and was not identified as a relevant issue at any stage before the Tribunal hearing” (AS, [4]) overstates the position. The Applicant’s contention draws on a further proposition in SZBEL that, in the absence of the Tribunal taking steps to notify the Applicant to the contrary, the Applicant is entitled to assume that the issues the delegate considered dispositive were the issues which arose for the decision-maker on review: SZBEL, [35]. In this case, the Applicant could not come to the Tribunal entitled to assume that internal relocation was not a dispositive issue because of anything the delegate had decided. The delegate had referred to the fact that the Applicant’s ability to leave his family to come to Australia “demonstrates that he will be able to relocate elsewhere in Malaysia” (CB64, [23]). Further, the delegate found that within Malaysia “homosexual life is more widespread in urbanised cities such as Kuala Lumpur” (CB64, [25]). With reference to the delegate’s decision, internal relocation remained a live issue before the Tribunal. I accept beyond those references in the delegate’s decision (CB64, [23], [25]) it was not clear what role internal relocation played in the delegate’s decision or whether it was a dispositive issue.
Thirdly, and most importantly, the Tribunal’s obligation was to invite the Applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review which obligation did not extend to identifying the significance of the questions it put to the claimant or the ultimate issue “to which those questions go”: Applicant A125.
Both the specific transcript references set out above, and the Tribunal’s broader inquiries as to how the Applicant lived in different parts of Malaysia, support a finding that the Tribunal afforded the Applicant procedural fairness and, in particular, the Applicant had an opportunity to give evidence and present arguments relating to the internal relocation issue as an issue arising in relation to the decision under review: see s. 425(1).
The Tribunal inquired broadly as to how the Applicant had lived as a gay man in different periods of his life and how he had lived in geographically different areas of Malaysia particularly when he was geographically distant from his family in an urban area and away from his family from whom he feared harm. As a matter of avoiding practical injustice, those questions afforded to the Applicant an opportunity to satisfy the Tribunal’s reservations about his case that internal relocation was not reasonably available to him: SZHKA, above.
I note that the Tribunal elicited evidence by its questions as to how the Applicant lived after College when he lived with his parents in an area of regional Malaysia, how he lived with his transgender friend Radah and how he lived in the urban centre of Kelang. Questions and answers as to how the Applicant had lived when he lived away from his parents, particularly with Radah, and in the urban centre of Kelang, were relevant to the issue of internal relocation even though the Tribunal did not expressly identify the significance of its questions or the issue to which those questions were directed. Section 425(1) did not require the Tribunal to further direct the “Applicant’s attention to the kind of evidence that he might need to give to succeed in his application”: Cf. AS, [7]. Superimposing such a requirement as implicit within s. 425(1) of the Act would be contrary to authority that it was not necessary for the Tribunal “to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go”: Applicant A125, [88]. As a matter of “fairness” (Nguyen, above) and avoiding practical injustice (ex parte Lam, above), the Tribunal identified to the Applicant the critical issue as to internal relocation and the nature of that issue. The Applicant had a real opportunity to present evidence and arguments as to reservations the Tribunal had as to his case (SZHKA, above) and as to the critical issue of whether the risk of harm related to all areas of Malaysia.
I do not accept the Applicant’s submission that the Tribunal had to clarify for the Applicant “a need for attention to be given to the terms of ss 5J(1)(c) and 5J(3) of the Act” [see: AS, 7(a)] or that there was a shortfall in the Tribunal’s approach because it did not “identify for the Applicant what the applicant needed to do to win” (T36:L12-13). That submission puts a gloss on s. 425(1) or imposes an additional requirement on the Tribunal which is not present expressly or implicitly in a correct interpretation of s. 425(1) of the Act.
I do not accept that there was a material difference between the Tribunal phrasing its questions in terms of “living” in Kuala Lumpur or “going” to Kuala Lumpur: Cf. AS, 7(b).
Ground 1 has not been made out.
Ground 2: Did the Tribunal fail to consider, or misunderstand, important evidence that the Applicant could not live openly as a gay man?
Ground 2 is as follows:
2. Reasons [43] is plainly wrong as the applicant’s evidence at hearing was that he could not live openly (at the end of the hearing he gave precise evidence of not being able to dress the way he wants), and thus, it is to be inferred that the Tribunal failed to consider, or misunderstood, this important evidence.
The Tribunal’s reasons at [43] which are impugned by the Applicant were as follows (CB159, [43]):
The applicant’s evidence was that in Malaysia he did not hide the fact that he was homosexual. In fact, his evidence was that he lived openly as a gay person. He attending [sic] clubs and socialised freely, having discussed his lifestyle and sexuality with work colleagues, friends and family members.
The Applicant submitted that his evidence at the hearing was, contrary to the Tribunal’s findings at [43], that he could not live openly, and thus, the Applicant submits that the Tribunal failed to consider, or misunderstood, this important evidence: AS, [10]. In his oral submissions, the Applicant contended that the Tribunal did not actively intellectually engage with this issue. The Applicant referred to the decision of Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 (Robertson J).
A decision-maker has an obligation to “read, identify, understand and evaluate” the claims and evidence. Having identified the claims and evidence it is the Tribunal’s task to sift the evidence and the appropriate “weight or persuasive quality” to be attributed to the evidence is a matter for the decision-maker. A decision-maker must also engage with the material within the bounds of legal reasonableness: see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) ALJR 497, [24]–[25]. There may be no clear distinction between claims and evidence: SZRKT, [111]. In assessing whether the Tribunal had sufficiently understood and evaluated the Applicant’s claims and evidence I must look at the whole of the Tribunal’s reasons.
It is with reference to those obligations of a decision-maker that the Applicant submits that the Tribunal “failed to consider” the Applicant’s evidence that he could not live openly as a gay man in any part of Malaysia.
The Applicant’s written submissions extract the following evidence from the transcript, in a passage very near to the end of the Tribunal hearing in support of his submissions as to Ground 2 (T39:L39–T40:L16):
Tribunal: Malaysia is an industrial – you know, it's a modern country, are you able to go to Kuala Lumpur and live openly as a gay person?
Applicant: In Kuala Lumpur?
Tribunal: Why can't you do that?
Applicant: Because if I'm going back to Malaysia, if I'm working in somewhere, I have to change my lifestyle and everything, I can't wear like pink T-shirt and then my shoes, my walk, and then my (indistinct) and then I have to share my feeling with someone, it's totally difficult. So I'll be like a fake my life, I have to be a fake person, I don't want that. I want my life, I want my (indistinct) I do want to – like a (indistinct) person I want to communicate with like my workplace, in my workplace, in here I really enjoy my workplace in there I have to be fake like, be like a man so even though I communicate with any girl person because – any case and then I'm not feel comfortable to stay with them because one month and two month there (indistinct) and fighting I don't want that, because I don't want fighting with anyone. I love anyone, I love everyone. So that's why. I just give you only one (indistinct) I don't want (indistinct) and then (indistinct) citizenship. I'm never apply for (indistinct) my citizen, I'm only stay here, just give me a way to stay here, that is the request.
[Tribunal]: All right. Thank you for your time.
The Applicant’s submissions summarise the alleged import of this passage in the following terms: “The applicant appears to be denying that he “lived openly,” or at least that he would or could “live openly” as a gay person in Kuala Lumpur. Rather, he is giving evidence of a need to change “everything,” including his lifestyle, the type of clothes he wears, his gait etc. and to be “fake”: AS, [10]. With a reference to other evidence the Applicant gave during the hearing before the answer set out above, the Applicant submitted that: “whilst there was some evidence of the applicant not entirely hiding his sexuality, there is a wide gap between total concealment and “living openly”: AS, [13].
“Living openly”
As noted, as to the Refugees Convention protections, the Tribunal accepted that the Applicant belonged to a social group of “Malaysian homosexual males” within the meaning of s. 5J(1)(a) of the Act: (CB159, [42]).
The Applicant emphasised a possible danger in substituting a consideration of whether the persecution was because of “living openly” as a gay person rather than considering the criterion set out in the statute of persecution because of “membership of a particular social group” in s. 5J(1)(a) of the Act.
The Tribunal may have drawn the concept of “living openly” as a gay person (CB159, [43]) from a discussion in AppellantS395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 which it footnoted (CB160, [44], fn. 25). AppellantS395/2002 concerned a Bangladeshi male gay couple who had lived discreetly, that is, had not “lived openly”, because they feared that if they lived openly as a gay couple, they would be subjected to discrimination.
In 2021 (after the date of the 2018 Tribunal decision the subject of challenge before me), in DQU16 v Minister for Home Affairs and Another (2021) 273 CLR 1; [2021] HCA 10 the plurality explained the principle for which Appellant S395/2002 stands at [8]–[9] in the following terms:
8.[…] The principle for which Appellant S395 stands is that “a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution” The principle “directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic” (emphasis added).
9.The rationale for the principle is that a person who would otherwise be entitled to protection under s 36(2)(a) will not, and should not, lose that protection if it can be shown that the person would or could avoid persecution by sacrificing a protected attribute under the Convention. The principle, and its rationale, ensure that “the very protection that the Convention is intended to secure” for those facing persecution because of a protected attribute is not undermined, or surrendered, by requiring such a person to conceal that attribute on return to their home country
[Footnotes omitted and emphasis added]
Adopting that explanation to the circumstances of the current case, the Applicant would still have a well-founded fear of persecution if he had to “hide,” “sacrifice the protected attribute” or “surrender” how he lived as a gay man if he returned to Malaysia. If the Applicant could only avoid a well-founded fear of persecution if he concealed the fact that he was gay (by living discreetly and he could not live openly) he would still have a well-founded fear of persecution for a Convention reason. Section 5J(3) of the Act (which was enacted after the date of the decision in S395/2002) addresses the issue of modifying behaviour to avoid a real chance of persecution, and is consistent with the principles in AppellantS395/2002: see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, [1194]. In summary, if the Applicant could only avoid persecution because he was gay by hiding his sexuality and modifying his behaviour he would still have a well-founded fear of persecution because of his sexuality, which is persecution for a Convention reason.
Did the Tribunal fail to identify, understand and evaluate the evidence (see: Plaintiff M1/2021, above) as to whether the Applicant had to hide the fact that he was gay and could only avoid a real chance of persecution if he modified his behaviour?
Taken on its own, one way in which to understand the Applicant’s answer extracted above (T39:L39–T40:L16) was as evidence that he would have to hide the fact that he was a gay man – and modify how he lived – if he returned to Malaysia, even if he relocated to an urban area away from his family. He would have to live a “fake” life altering his lifestyle, clothes and gait. With reference to s. 5J(3), he contended that he would have to live in a way that would “conflict with a characteristic that is fundamental to […] [his] identity or conscience” or “conceal an innate or immutable characteristic” or would “alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status”: s. 5J(3)(a), (c) and (c)(vi). In effect, the Applicant submits that because the Tribunal did not evaluate his evidence as to how he lived as a gay man, the Tribunal in effect was imposing on him an obligation to modify his or her behaviour contrary to s. 5J(3) so as to avoid a real chance of persecution.
The passage set out above (T39:L39–T40:L16), however, cannot be considered in isolation and ought not to be taken on its own. The totality of the evidence the Applicant gave, and other parts of the Tribunal’s reasons ought not to be disregarded in an assessment of whether the Tribunal identified and evaluated the Applicant’s claims and evidence as to this issue in accordance with the principles in Plaintiff M1/2021. At other points of the Tribunal hearing, the Applicant gave evidence that he was able to live as a gay man in Malaysia without hiding his sexuality.
In addition to the passage to which the Applicant refers, there was other evidence which cut both ways as to whether the Applicant did or did not have to hide his sexuality to avoid a real chance of persecution.
The Tribunal expressly identified in its reasons evidence of the Applicant having to hide his sexuality. The Tribunal expressly referred to the Applicant’s evidence that (CB153-154):
(a)“he felt alone and uncomfortable” ([12(d)]);
(b)if he “returns to Malaysia […] he cannot live his own life” ([12(d)]);
(c)same sex love is “illegal and unwelcomed” in Malaysia ([12(f)]);
(d)he “has never had the freedom to be himself” ([14]); and
(e)after College he was kept under “close control” by his parents ([18]).
The Tribunal identified other evidence that the Applicant did not have to hide his sexuality. The Tribunal referred to evidence:
(a)“that when he was with his friends… he felt free and able to socialise freely and normally” ([18]);
(b)while he lived with Radah “the Applicant would attend clubs and socialise with other members of the LGBTI community” ([19]);
(c)when the Applicant worked in Kelang, “he socialised freely and visited clubs” ([20]); and
(d)“he was open and honest about his lifestyle and sexuality with work colleagues, friends, and family” ([20]).
Consistently with the principles in Plaintiff M1/2021, the Tribunal identified and evaluated the various claims and evidence. The Tribunal’s reference to the Applicant’s evidence that he could not “live his own life” and “has never had the freedom to be himself” captures a consideration of the Applicant’s evidence in the Tribunal Transcript (T39:L39–T40:L16) excerpted above. Although there was evidence that whilst the Applicant had confronted challenges living as a gay man in Malaysia there was also significant countervailing material before the Tribunal that he had lived as a gay man in Malaysia without hiding his sexuality and without modifying his behaviour.
The Tribunal’s conclusion that the Applicant was able to live as a gay man in Malaysia without hiding his sexuality and without modifying his behaviour represented a synthesis reasonably open to it of the various claims and evidence about how the Applicant lived as a gay man in Malaysia. I see no jurisdictional error in its evaluation of the claims and evidence.
Section 5J(3)(c) - modification of behaviour
Finally, no issue of whether the Applicant would only be safe if he modified his behaviour under s. 5J(3) directly arose. In effect, the Tribunal found that the Applicant as a gay man could avoid persecution in an urban centre without modifying his behaviour because he was away from his family. Expressed slightly differently, the Tribunal did not find that modification of behaviour was a pre-requisite of the Applicant avoiding a real chance of persecution. The Tribunal did not fall into an error by misunderstanding s. 5J(3)(c). The Tribunal did not impose a requirement that the Applicant had to surrender the protected attribute or hide his homosexuality (to avoid a well-founded fear of persecution by living discreetly as a gay man): Cf. Appellant 395/2002.
It is worth repeating the Tribunal’s conclusion in its own words was that there was “not a real chance that the Applicant will suffer serious harm in the event he returns to Malaysia if he relocates to a large urban area such as Kuala Lumpur” (CB161, [50]; emphasis added).
Even though there is no statutory equivalent to s. 5J(3) under the complementary protection framework, there was no relevant difference as to the issues which arose under the complementary protection framework. It would not be “reasonable” for the non-citizen to relocate to an area the country where there would not be a real risk that the non-citizen would suffer significant harm for the purposes of s. 36(2B)(a) if the non-citizen could only avoid the real risk of significant harm by modifying his behaviour by hiding his sexuality. In the circumstances of this case, where the risk to the Applicant was from his family it was open to the Tribunal to conclude that there would not be a real risk that the Applicant would suffer significant harm if he relocated to an urban area in Malaysia in accordance with s. 36(2B)(a) of the Act (CB160, [49]).
Ground 2 has not been made out.
CONCLUSION
I will dismiss the application. I will order that the Applicant pay the First Respondent’s costs in accordance with the relevant scale.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 25 January 2024
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