DPK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 776
•9 July 2021
FEDERAL COURT OF AUSTRALIA
DPK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 776
Appeal from: DPK17 v Minister for Immigration & Anor [2020] FCCA 2604 File number: VID 647 of 2020 Judgment of: SNADEN J Date of judgment: 9 July 2021 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – where primary judge dismissed application for review of Administrative Appeals Tribunal decision – where Tribunal affirmed decision of delegate of Minister to refuse to grant protection visa – whether primary judge erred in failing to find that the Tribunal did not “deal with” country information relating to laws targeting transgender persons in Malaysia – whether primary judge erred in failing to find that the Tribunal did not take into account a relevant consideration – whether real risk of mental harm to applicant sufficient to constitute significant harm – jurisdictional error not established – appeal dismissed Legislation: Migration Act 1958 (Cth) – ss 5 and 36
Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
DPK17 v Minister for Immigration & Anor [2020] FCCA 2604
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Navoto v Minister for Home Affairs [2019] FCAFC 135
Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 48 Date of hearing: 25 May 2021 Counsel for the Appellant: Mr M. Albert Solicitor for the Appellant: Victoria Legal Aid Counsel for the First Respondent: Mr T. Reilly Solicitor for the First Respondent: Mills Oakley ORDERS
VID 647 of 2020 BETWEEN: DPK17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
9 JULY 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
The appellant is a Malaysian national. On 1 July 2015, he came to Australia as the holder of a visitor visa. Three months after arriving, he made an application for a protection visa (within the meaning given to that phrase by the Migration Act 1958 (Cth)—hereafter, “the Act”).
The appellant is ethnically Chinese and an adherent of the Buddhist faith. Although born female, he self-identifies and presents as male. His intimate relationships have all been with women. Those facts assume some prominence, as will shortly become apparent.
The appellant’s protection visa application (hereafter, the “Visa Application”) came before a delegate of the first respondent (hereafter, “the Minister”). By a decision dated 5 September 2016, the Minister’s delegate rejected the appellant’s Visa Application (that decision is referred to, hereafter, as the “Delegate’s Decision”).
On 16 September 2016, the appellant applied to the second respondent (hereafter, the “Tribunal”) for a review of the Delegate’s Decision. That application (hereafter, the “Review Application”) came before the Tribunal on 19 July 2017. By a decision dated 25 July 2017, the Tribunal affirmed the Delegate’s Decision (that decision is referred to, hereafter, as the “Tribunal’s Decision”).
On 10 August 2017, the appellant filed an application with the Federal Circuit Court of Australia (hereafter, the “FCCA”) for judicial review of the Tribunal’s Decision. That application (hereafter, the “Judicial Review Application”) was amended on 7 February 2019. On 17 September 2020, the FCCA dismissed it: DPK17 v Minister for Immigration & Anor [2020] FCCA 2604 (hereafter, the “FCCA Judgment”; Judge Egan).
The appellant now appeals from that judgment. He asks that the FCCA’s orders be set aside and that, in their place, this court grant prerogative relief in the nature of certiorari and mandamus to set the Tribunal’s Decision aside and remit the Review Application back to the Tribunal for determination according to law. He also seeks an order requiring the Minister to pay his costs, both of the present appeal and of the Judicial Review Application. For the reasons that follow, the appeal will be dismissed.
Throughout these reasons, references to the appellant employ masculine pronouns, as he politely requested. That represents something of a change since this matter began its trajectory. Before the Tribunal, the applicant indicated that he continued to “…self-identify with the female pronouns she” (emphasis original). That aligned with his claim that he is a lesbian. As that last sentence attests, referring to him now by masculine pronouns results in some regrettably clumsy drafting. More regrettably, it affords some scope for confusion insofar as these reasons interact with those of the Tribunal and the FCCA, both of which employ feminine pronouns. Legally, however, nothing turns on the language that I will employ. The purpose of this paragraph is twofold: first, to alert in advance to the scope for confusion to which I have adverted; second, to note that no criticism of the FCCA or the Tribunal should be read into my use of the alternative gender (noting, as I do, that there were legitimate reasons in those fora for the employment of feminine pronouns).
THE APPELLANT’S PROTECTION CLAIM
In support of the Visa Application, the appellant contended that, if returned to Malaysia, he feared that “…[he] will suffer serious or significant harm at the hands of Malaysian authorities and non-state actors[,] including in the form of serious psychological harm, physical assault, sexual violence, torture, incarceration, cruel or inhuman treatment or punishment[,] or degrading treatment or punishment…” That, he contended, would occur by reason of the facts (amongst others) that he is homosexual and transgendered.
To establish that that fear was well-founded, the appellant outlined a series of experiences that befell him in Malaysia. It is convenient to replicate the following summary that he provided in that regard:
(c)The applicant's fears of facing serious harm in Malaysia are based on h[is] own past experiences:
•[He] was unable to be open about h[is] sexuality or gender identity and was forced to hide h[is] identity as a lesbian transgender person in Malaysia;
•Both [he] and h[is] girlfriend w[ere] verbally, sexually and physically assaulted by members of the public because of their identification as lesbians and were unable to obtain protection from the police;
•[He] was warned about the illegality of homosexual behaviour by police when [he] attempted to seek their assistance following a sexual assault;
•[He] could not safely explore h[is] gender identity or express h[is] sexuality without repercussions from the Malaysian community and the authorities;
•[He] has been verbally abused and threatened by the authorities because [he] fails to fit into the social expectations of a woman and that this fear has prevented h[im] from free[l]y expressing h[is] gender identity and sexuality;
•[He] has faced systematic discrimination at work because of h[is] appearance as a man and because of the perception that [he] is a lesbian because [he] looked and acts like a man. As a result, [he] has been unable to maintain stable employment and has faced bullying, exclusion and ridicule[ ]from members in the community.
Additionally, the appellant made reference in the contentions that he advanced in support of his Visa Application to country information regarding the treatment of homosexual and transgendered people in Malaysia. By way of summary, that country information tended to establish that homosexuality and transgenderism is outlawed in Malaysia, particularly in respect of its Islamic population. Again, it is convenient to replicate in full the contentions that the appellant made that are of particular relevance presently (references omitted, errors original):
…Criminalisation of transgender people in Malaysia
Transgender people have largely been criminalized by Syariah laws enforced by each state's Islamic Religious Department in Malaysia. Although the language condemning transgender behaviour varies across the states and territories, the laws aim to discipline and punish women who gender identify or choose to dress as men.
In the state of Pahang, section 34 of the Syariah Criminal Offences Enactment 2013 states:
''Any woman who, in any public place, wears a man's attire and poses as a man for immoral purposes commits an offence and shall, on conviction, be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding one year or to both”.
In the state of Sabah, the Malaysian state occupying the northern part of the island, also enforces specific laws on gender identity. In section 92 of the Syariah Criminal Offences Enactment 1995 states:
''Any male person who, in any public place, wears a woman's attire and poses as a woman or vice versa shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both."
Human Rights Watch have also found that in Kedah, northwest Malaysia, also prohibits women displaying 'tomboy behavior' in Syriah Criminal Code Enactment 1988:
"Tomboy behavior, by law, is forbidden in the Islamic religion because women who imitate men are condemned by Allah and Prophet Muhammad (p.b.u.h) because this behavior mimics and resembles (tasyabbuh) another sex which is contrary to their original sex or natural characteristics.
This behavior and aqidah must be restricted in Kedah Darul Aman if a female has/resembles a male in the aspects of physical characteristics, style, hairstyle, adornment, appearance, manner of speech, manner of dress and sensual desires or has homo-sexual instincts (lesbianism).
Therefore, Muslim parents and the community must pay serious attention to this social sickness and emphasize on Islamic education and impart proper guidance to their daughters, especially in terms of dressing, behavior and appearance so that tomboy behavior phenomena can be avoided and eradicated because it is contrary to human nature and the laws of Allah."
This is similarly enforced in Malacca, a Malaysian state on the Malay Peninsula's southwest coast in Syariah Criminal Enactment 1991 [207]:
"a) Adopting the decision of the 83rd Conference of the Committee for the National Fatwa Council for the Islamic Religious Affairs of Malaysia held from 22 to 24 October 2008 that:
i.Tomboy, which is women with the appearance and behavior as well as sexual instincts resembling men is forbidden in Islam.
ii.Muslim parents and the community are urged to give serious attention to this phenomena and to focus on the best education and guidance for girls especially in terms of dressing, behavior and appearance so that these phenomena can be avoided as it is contrary to human nature and the laws of Allah."
As a result of laws transgendered people are more vulnerable and disproportionately face barriers when attempting to access justice; they are arrested more frequently and face barriers from making complaints about prejudice experienced by both state and non-state actors.
In a well-publicised example of the use of these laws, on 9 June 2014 in the Malaysian state of Negeri Sembilan, a wedding party was raided and 17 guests were arrested, with reports individuals has their clothes torn, were chocked, and kicked to the ground. This incident was subject to court action, though recently in October 2015, the Malaysian Federal Court reversed a lower court ruling that a state's prohibition on "cross-dressing" was unconstitutional. Just days after the ban on cross-dressing was reinstated in the Federal Court decision, raids and arrests of transgender individuals were reportedly carried out in several states, with punitive actions such as head-shaving and restrictions on conditions of bail imposed.
Further, Human Rights Watch have reported that on September 10, 2015, one of Malaysia's most prominent transgender activists, Nisha Ayub, was brutally beaten by two men wielding iron bars outside her apartment building, requiring her hospitalization. She reported the apparent hate crime to the police, but the police have not identified any suspects.
In April 2012 Malaysia's Deputy Prime Minister Tan Sri Muhyiddin Yassin announced funding to enable counsellors to tackle homosexuality in Malaysia:
"Muhyiddin said the funding "includes counselling skills for those faced with sexuality problems which threatens the integrity of the family institution .... 'The symptoms of sexual orientation disorder like LGBT, which was previously faced by the Western society are now faced in our society also' .... 'I believe that through an effective counselling approach, we will be able to curb this negative phenomenon from spreading in our community'."
…Treatment of transgender people
The series of laws criminalizing transgendered people have encouraged Malaysian authorities and Religious Department officials to humiliate, assault and extort transgendered persons without being held accountable for their violations:
" ... under these laws transgendered people can be arrested for simple wearing clothes deemed not to pertain to their assigned sex .... Human Rights Watch documented rights violations by state religious officials and police including arbitrary arrests and detention; sexual assault, torture, and ii/treatment; and extortion of money and sex".
" .... in some cases, Religious Department officials physically and sexually assault transwomen during arrests or while they are in custody, parade them before the media or [humiliate] them without being held accountable for these violations”
Transgender people in Malaysia also face discrimination and abuse from other state officials and agents, including public sector health workers, teachers, and local government administrators:
“When she sought treatment for a fever at a government hospital, “the nurse didn't want to touch me,” said Sharan, a transgender woman in Kuala Lumpur. "I felt as if I have a disease - if you touch me, are you going to become transgender as well?”
Prosecutions by the state have also significantly contributed to the widespread discrimination and serious harm perpetrated against transgender people by private citizens and employers, creating a hostile and non-inclusive environment:
''All the four [transgender] women interviewed explained how it was difficult for them to rent a house, continue their education (the stress of having to room with a male student) or find jobs other than low-paying and precarious ones in the field of administration, food and beverages, or as a last resort, sex work. Even if they looked female (which even the ERT report also tried to emphasise with one of their accompanying images), their identity card revealed their masculine gender and names, as given at birth, resulting in discrimination and ridicule".
THE STATUTORY FRAMEWORK
Section 36 of the Act stipulates the criteria that an applicant must satisfy in order to qualify for a protection visa. Relevantly for present purposes, an applicant must establish either that he or she is a refugee (as elsewhere defined) or otherwise faces a real risk of subjection to “significant harm” if removed from Australia. “[S]ignificant harm” is defined by s 36(2A), which provides as follows:
(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.
As is apparent, “significant harm” comprises numerous discrete, constituent concepts. Of present relevance is that which is the subject of paragraph (d): “cruel or inhuman treatment or punishment”. That concept is defined by s 5 of the Act as follows:
5 Interpretation
(1) In this Act, unless the contrary intention appears:
…
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.
The Tribunal’s jurisdiction to review the Delegate’s Decision is not in question, nor is the FCCA’s jurisdiction to hear the Judicial Review Application or this court’s jurisdiction to hear an appeal from the FCCA Judgment.
THE TRIBUNAL’S DECISION
As is common, the Tribunal’s Decision begins with a recitation of the relevant statutory criteria. At [9] of its decision, the Tribunal noted as follows:
9.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.
In the attachment referred to, the Tribunal replicated (amongst others) the statutory provisions that are set out above (at [11] and [12]).
The Tribunal also made reference to the written contentions that the appellant advanced in support of his Visa Application. Of present relevance, it noted (Tribunal’s Decision, [13]-[15]) (references omitted):
13.The applicant also included with h[is] application a number of photographs of h[is] with friends in Malaysia and press articles regarding discrimination against non-Muslims and Human rights in Malaysia, including for Gay people, a Fatwa issued against girls with short hair and who dress like boys (tomboys), political and police corruption, anti-LGTBI laws, and the arrest by religious police of two women for homosexuality.
14.On 21 July 2016 the applicant engaged a representative. On 30 August 2016 the applicant’s then representative provided a submission in support of the applicant’s Protection visa application. Enclosed with the submission was a statutory declaration of 23 August 2016 by the applicant. Additional matters raised in the applicant’s statutory declaration of 23 August 2016 are summarised as follows:
•If [he] is forced to return to Malaysia [he] is scared that [he] will face harm at the hands of the Malaysian authorities and the Malaysian community because of h[is] identity as a lesbian and transgender person.
•[He] is no longer in a relationship with the woman [he] listed as being a member of h[is] family unit. [He] intended that this person would come to Australia to be with h[im] but this person’s parents would not allow her to leave Malaysia.
•H[is] parents knew [he] was a lesbian but h[is] sexuality was never discussed with h[is] family. While h[is] parents were concerned that [he] might be treated differently or abused because of h[is] appearance, they did not forbid h[im] from dressing in a manly way.
•[He] was bullied badly at school due to h[is] appearance and left at age 16 because [he] could not handle the bullying anymore. H[is] parents supported this decision.
•[He] had four different jobs in Malaysia. [He] was treated differently and experienced discrimination. If [he] returned to Malaysia [he] fears [he] would be denied work at many places because of h[is] appearance and would be looked down upon by customers and the general public.
•[He] feels [he] is male but has the body of a female. [He] wants people to see h[im] as a male so dresses in a masculine way. In Malaysia [he] is forced to be a woman in interactions with the police or the general public.
•[He] realised [he] was sexually attracted to girls when [he] was about 15 years old. [He] had h[is] first sexual experience with a girl [he] met at school. They did not show their affection for each other in public to avoid gossip, ridicule and bullying. Their families knew they were in a relationship and neither agreed or disagreed with it. H[is] family let h[im] continue with it but were worried about h[im] being hurt.
•[He] is currently in a new relationship. They do not live together but intend to live together in the future.
•Lesbian women are a target to local Malays because of the way they look. They yell out ‘she-males’ or she-boys’ in a mean, hateful way which makes h[im] feel sad and depressed.
•[He] tried to move to different areas in Malaysia to be safe. [He] moved to Gurney Park which has many Chinese people but [he] was still picked on for looking different to other women. [He] walked to work and at least three times a week locals would yell out comments when [he] walked past.
15.In h[is] submission, the applicant’s representative has summarised the applicant’s claims; presented argument that the applicant is a vulnerable person who finds it difficult to talk openly about h[is] sexuality and gender identity; and commented on country information regarding the treatment of homosexuals and transgender people in Malaysia, including the impact of civil and Syariah law provisions and government statements and initiatives. The representative also comments that there is a significant level of private violence against LGBT people, which often goes unreported because it is from family members. The representative also submits that the Malaysian police will refuse to enforce laws to protect the applicant against violence on the basis of the applicant’s sexuality, gender identity and religion and that this in and of itself amounts to persecution.
Reference was also made to contentions that the appellant advanced orally at the hearing that took place before the Tribunal on 19 July 2017. Under the heading “Assessment of claims”, the Tribunal made the following observations (Tribunal’s Decision, [28]-[30]):
28.The applicant’s former representative asserted that, based on h[is] past experiences, the applicant fears that if [he] returns to Malaysia [he] will suffer serious or significant harm at the hands of Malaysian authorities and non-state actors including in the form of serious psychological harm, physical assault, sexual violence, torture, incarceration, cruel or inhuman treatment or punishment or degrading treatment or punishment on account of, either cumulatively or separately:
•H[is] membership of the particular social group ‘homosexuals in Malaysia’; and
•H[is] membership of the particular social groups ‘transgendered people in Malaysia’ and/or ‘person who is born a male but chooses to identify as a female or take on female gender identity in Malaysia’.
29.This latter construction appears to be an error by the representative, however, given the applicant indicated in h[is] statutory declaration that [he] has the body of a female but wishes to be viewed as a male and so dresses in a masculine way. The applicant indicated in h[is] statutory declaration that some people would make disparaging remarks to h[im], using the terms ‘tom boy’ and ‘she-boy’.
30.The Tribunal accepts that the applicant is homosexual (more specifically that [he] is a lesbian). The Tribunal also accepts that the applicant is a transgender person to the extent that [he] is a woman who wishes to be viewed as a male and hence dresses in a masculine way. The Tribunal accepts that the applicant would be perceived by many people in Malaysia to be a lesbian and a ‘she-boy’ or ‘tom boy’. The Tribunal accepts that ‘homosexuals in Malaysia’, ‘lesbians in Malaysia’, ‘transgender persons in Malaysia’ and ‘women in Malaysia who adopt the appearance of men’ are particular social groups for the purposes of s.5J(1) of the Act.
The Tribunal next accepted that the appellant had endured the treatment in Malaysia that he had claimed to have endured (and on the strength of which, or partly on the strength of which, he claimed to be entitled to protection in Australia). Its attention then turned to information concerning the treatment of homosexual and transgendered people in Malaysia. Again, it is convenient to record in full the observations that the Tribunal made in those regards (Tribunal’s Decision, [42]-[49]) (references omitted):
LGBTI persons in Malaysia
42.As discussed with the applicant at the hearing, in considering h[is] claims that [he] would suffer serious harm in Malaysia because [he] is a lesbian and because [he] is a woman who wishes to be viewed as a male and hence dresses in a masculine way, the Tribunal has considered a range of relevant country information. The Tribunal notes that different laws apply to different parts of the community and Syariah/Sharia laws policed by religious police predominantly impact Muslims in Malaysia. In this regard DFAT advises that Sharia-based law applies only to ‘persons professing the religion of Islam’ but the enforcement of Sharia sometimes affects non-Muslims, particularly in relation to matters involving religious conversion and family law. As the applicant is of ethnic Chinese Buddhist background and not a Muslim, and not involved in religious conversion or family law matters, the Tribunal finds that Sharia law is not relevant to h[is] circumstances.
43.The Tribunal notes that article 377 of the Penal Code provides Malaysian laws (as opposed to religious law) with respect to sexual activity. The provisions of this section of the Penal Code target male activity. Article 377A is relevant to men, as this discusses ‘the insertion of the penis into the mouth or anus of another person to be carnal intercourse against the order of nature’. Article 377B indicates that those voluntarily committing carnal intercourse against the order of nature face up to 20 years jail.
44.Article 377D of the Penal Code states that ‘Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years’.
45.However, these provisions of section 377 are not enforced by the authorities, there being seven recorded instances in the past 70 years, four of which were specifically against Anwar Ibrahim. It has been reported that the use of these provisions is highly political in nature and they are not used in the ordinary course of matters against individuals. No other provisions of the Penal Code refer to homosexuality, thus being homosexual of itself is not illegal in Malaysia. The Tribunal considers that while the laws exist, they are not used to prosecute women like the applicant who identify and practice as lesbians in Malaysia, and would not be used against the applicant herself.
46.The Tribunal also referred to the DFAT Country Information Report Malaysia from July 2016 at the hearing. This report includes the following relevant comments regarding sexual orientation and gender identity in Malaysia.
3.89 Malaysia has retained the colonial-era article 377 of the Penal Code, which provides that anal or oral sex is illegal in Malaysia, as is ‘carnal intercourse against the order of nature’. Such activities attract a prison sentence of up to 20 years or caning. However, the Penal Code offences have infrequently been applied to homosexuals except where its application has been politically motivated (see ‘Political Opinion (Actual or Imputed)’, above).
3.90 The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals. In August 2015 Prime Minister Najib claimed that ‘groups like the Islamic State and lesbians, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society’. In May 2014, Prime Minister Najib said the government would ‘not allow Muslims to engage in LGBTI activities’. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were ‘poisoning the minds of Muslims with deviant practices’.
3.91 The police and judiciary have banned public demonstrations of support for the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011 in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordinating Committee of Islamic NGOs. The Royal Malaysian Police banned the festival under the Police Act on the grounds that it would cause public disorder. The ban was upheld by the High Court and eventually the Court of Appeals in August 2013. Since 1994, homosexual, bisexual, transsexual and transgender individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.
3.92 The federal government, and a few state governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth. Throughout 2013, the government ran a musical called ‘Abnormal Desire’ across all Malaysian states, portraying the ‘negative lifestyle’ of LGBTI people. LGBTI individuals in the play were struck by lightning and turned straight (heterosexual). The play was supported by the Malaysian Education Department and state Islamic authorities.
3.94 DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by the LGBTI community differs, depending on the socio-economic status, the religion and the geographic location of the individual. For instance, many middle and upper class, educated and urban Malaysians can be open about their sexuality within their family and community circles. Contacts described that, in the past, there were nominal roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events. However, they believed that this level of societal acceptance had disappeared. Many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.
3.95 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 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 crossdressing.
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.
47.A body of evidence also exists that shows LGBTI individuals experience varying degrees of tolerance. A May 2012 report on the Gay Star News website refers to the comments of Lee Kam Wye, a retired secondary school teacher in Malaysia, who said that ‘LGBT may appear to be spreading not because more people are being recruited into LGBT lifestyle but because this community is braver and more open now’. A February 2012 Hindustan Times article, sourced from Agence France-Presse, indicates that ‘The gay and lesbian community in socially conservative Malaysia has slowly gained a higher profile in recent years, and transsexuals live openly in cities’. The article also indicates, however that ‘many complain they continue to live in fear of persecution, especially amid a perceived growing Islamisation of the country’. A January 2011 Inter Press Service article refers to the comments of Michael Lam, a gay accountant in Malaysia, who, when discussing the reaction to Azman Ismail, a Muslim, going on YouTube.com and confessing that he was a gay, said that ‘What’s shocking to many Malaysians is not the fact that there are LGBT persons or LGBT behaviour, which is common but never in your face’, it was ‘the open admission of being gay and the defence of homosexuality by a Malay Muslim’. It was ‘the openness that is inviting adverse reaction’. Lam also said that ‘LGBT is generally tolerated, but as long as it is not flaunted.’
48.A website advising homosexuals on travelling around Asia makes the following remarks with respect to the Malaysian gay scene.
Malaysia will no doubt surprise you. This multi-cultural nation, largely populated by moderate Muslims and fiercely intolerant of being bullied by western powers, is filled with charm, nature, culture, and warm hospitality. Remarkably, it also has a thriving gay scene (perhaps Southeast Asia’s most exciting) which, while still mostly underground, is basically tolerated by the live-and-let-live attitude of its people.
Yes, the country was once lead by a cranky homophobe, Mahathir Mohamad, who infamously ousted his one-time protégé, Anwar Ibrahim, on trumped-up sodomy charges, despicably wielding antique colonial buggery laws to do so.
Times change. Homohaters and dictators are relegated to the dust bin these days. Anwar’s groundless conviction was overturned by Malaysia’s high court in 2004. Mahatir’s daughter, Marina, works tirelessly behind the scenes to support AIDS/HIV education, including championing efforts by Malaysian GLBT health worker heroes.
Malaysia is thriving under the fresh air of tolerance and democracy. Straight-owned venues openly cultivate custom from the gay community, while homosexual entrepreneurs launch trendy businesses and mini-utopias of their own.
49.The US Department of State report on human rights practices in Malaysia for 2016 indicates that Malaysia’s human rights problems include ‘discrimination against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons’, and that ‘[r]eligious and cultural taboos against same-sex sexual conduct were widespread’. The Human Rights Watch 2017 World Report on Malaysia states that ‘discrimination against lesbian, gay, bisexual, and transgender people is pervasive in Malaysia.
The Tribunal accepted that homosexuality in Malaysia is criminalised but found that the law is applied only in cases involving a degree of political interest. It did not consider that the appellant is at anything more than a remote risk of criminal sanction on account of his homosexuality. That finding is not the subject of the present appeal.
The Tribunal went on to make the following observations about the treatment of “LGBTI persons” in Malaysia (Tribunal’s Decision, [51]):
51.The Tribunal has taken into account that DFAT has indicated that LGBTI persons face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia and that many LGBTI persons, particularly Muslims, hide their identity to avoid harassment. However, DFAT also assesses that the level and frequency of discrimination differs depending on the socio-economic status, the religion and the geographic location of the individual. In this regard the Tribunal has considered that the applicant is an ethnic Chinese Buddhist rather than a Muslim. [He] also indicated that h[is] family are aware of h[is] sexual orientation and h[is] choice to dress as a man and, while they do not discuss h[is] sexuality, they have remained supportive of h[im]. The Tribunal finds, therefore, that the applicant is not at risk of the kind of violence from h[is] family that the applicant’s former representative indicated can result in a significant level of private, unreported violence against LGBTI people in Malaysia. The applicant also indicated that [he] moved from h[is] home village in Kedah state to Pulau Pinang (Penang Island) in Penang State (one of the urban centres where DFAT indicates ethnic Chinese comprise 30 per cent or more of the population), where [he] worked in Chinese restaurants, and where there were larger ethnic Chinese communities which [he] found more tolerant. This is consistent with DFAT advice, discussed with the applicant at the hearing, that Malaysians wishing to avoid attention, including transgender individuals, can and do freely relocate internally, often moving to large urban centres. In this regard, the Tribunal also asked the applicant at the hearing if [he] had considered relocating to Kuala Lumpur. The applicant commented that from h[is] experience [he] would encounter strange looks and discrimination wherever [he] went. [He] commented that [he] was quite afraid to go back as [he] did not wish to experience Muslim bullying against Chinese again. While the Tribunal accepts that the applicant faces a degree of both official and societal discrimination as a consequence of h[is] status as a lesbian and as a woman who adopts the appearance of a man, the Tribunal does not consider this to constitute either serious harm or significant harm. When asked whether [he] experienced problems working in the Chinese restaurant at Gurney Park on Penang Island, the applicant indicated some of the older people sometimes gave h[im] strange looks or passed remarks about h[is] appearance. [He] agreed, however, that [he] left that job to go to a different job at another Chinese restaurant at Bayan Lepas, also on Penang Island, that provided better pay. The Tribunal asked the applicant why [he] subsequently left the new job and [he] said [he] experienced the same problem where people looked at h[im] strangely. The Tribunal accepts that, because of h[is] appearance, some people will look at the applicant ‘strangely’ and some may pass remarks asking why [he] dresses like a man. The Tribunal accepts that occasionally some people may pass abusive comments. However, the Tribunal does not consider that these looks or remarks constitute persecution involving serious harm or significant harm. Considering all the country information and h[is] individual circumstances, both separately and cumulatively, the Tribunal finds that the applicant could live openly in Malaysia as a lesbian and as a transgender woman who adopts the appearance of a man, without having to modify h[is] behaviour to avoid a real chance of persecution or a real risk of significant harm. In reaching this conclusion the Tribunal has noted the DFAT advice above that it 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. Noting the context of the DFAT advice, which the Tribunal finds refers almost exclusively to Muslim men who identify as women, the Tribunal finds that, as the applicant is not Muslim and is a woman who dresses as a man rather than a man who cross-dresses as a woman, [he] does not face this level of discrimination or risk of societal violence. The Tribunal finds that, considering h[is] personal circumstances, the applicant does not face a real chance of persecution involving serious harm or a real risk of significant harm.
Ultimately, having considered “the appellant’s circumstances both separately and cumulatively and the country information as a whole”, the Tribunal concluded that the appellant is not at risk of persecution sufficient to constitute him as a refugee for the purposes of s 36(2)(a); and that there is not a real risk that he would suffer significant harm if removed from Australia. It concluded that the appellant does not satisfy the criteria upon which his Visa Application turned and, for that reason, affirmed the Delegate’s Decision.
THE FCCA JUDGMENT AND THE PRESENT APPEAL
The Judicial Review Application proceeded upon three grounds, two of which are effectively repeated for the purposes of the present appeal (and are replicated in full below). All three alleged that the Tribunal’s Decision was the product of jurisdictional error.
The FCCA rejected all three of those grounds. It is not necessary to rehearse its reasons for doing so here. If, as the appellant contends, the Tribunal’s Decision was attended by either or both of the species of jurisdictional error that are alleged, it will follow that the FCCA was wrong to conclude otherwise and the appeal will succeed. Conversely, if neither species of jurisdictional error was committed, it will follow that the FCCA was correct so to decide and the appeal will fail.
As has been stated, the appeal proceeds upon two grounds, which it is convenient to replicate:
Grounds of appeal
1.The primary judge erred in failing to find that the second respondent erred in its statutory task in that it did not ‘deal with’ the country information relating to the laws targeting transgender, not homosexual, persons in Malaysia, in circumstances where it accepted the Applicant was a transgender person.
2.The primary judge erred in failing to find that the second respondent erred by failing to take into account a relevant consideration or failed to ask the right question, namely whether the real risk of mental (not physical) harm occasioned by the anticipated conditions on return for this Applicant could amount to significant harm for the purposes of s 36(2)(aa) of the Migration Act 1958 (Cth).
I will address each in turn.
GROUND ONE: FAILURE TO DEAL WITH COUNTRY INFORMATION
The appellant complains (and, before the FCCA, complained) that the Tribunal did not “deal with” country information that he advanced concerning the treatment of transgendered people in Malaysia. He contends that the Tribunal’s reasons focus upon the treatment of Islamic or homosexual Malaysians, rather than non-Islamic transgendered people. He complains that the reasons disclose no evaluation of the country information that he submitted, which more specifically addressed the plight of transgendered people in Malaysia. In the absence of any analysis of that which he put before the Tribunal, he urges the court to conclude that his submissions in that regard (or the evidence that he advanced in support of them) went unconsidered. That failure to consider what he advanced, he says, reflects an error of jurisdiction on the Tribunal’s part.
It is not in doubt that the Tribunal, in determining the Review Application, was obliged to consider the submissions that the appellant advanced in support of his Visa Application. If it failed to meet that obligation, the decision that it made will have been beyond what it had jurisdiction to make. That proposition is presently uncontroversial (and is, in any event, amply supported by binding authority: see, for example, Minister for Home Affairs v Omar (2019) 272 FCR 589, 602-604 [34] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); Navoto v Minister for Home Affairs [2019] FCAFC 135, [86]-[89] (Middleton, Moshinsky and Anderson JJ); Minister for Home Affairs v Buadromo (2018) 267 FCR 320 (“Buadromo”), 332 [42] (Besanko, Barker and Bromwich JJ)).
To speak of the Tribunal’s obligation to “consider” what the appellant advanced is to recognise that the Tribunal was obliged to subject what he advanced to an “active intellectual process”: CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131 (hereafter, “CAR15”), 149-150 [76] (Allsop CJ, Kenny and Snaden JJ). The court might infer a want of any such engagement in circumstances where there exists a written record of the reasons for which a particular administrative decision was made and there is no reference within it to what is said to have gone unconsidered: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 346 [69] (McHugh, Gummow and Hayne JJ).
Before the Tribunal, the appellant contended that it was unsafe for him to return to Malaysia—that is to say, that there was a real risk that, if he were to do so, he would suffer “significant harm” (as defined)—because of the way that transgendered people are treated there. It is, of course, not in doubt that the Tribunal turned its mind to that question. The appellant raises two complaints about the way that it did so.
First, he says that the country information upon which it relied pertained primarily to trans-women and/or people of Islamic faith, rather than to people like him (that is, people who are neither Islamic nor biologically male). Second, he says that the Tribunal appears not to have considered, or properly considered, the country information that he advanced, which was specific to the prejudices that befall people like him in Malaysia.
The first complaint can swiftly be dealt with. Although it might well be true to say that the country information to which the Tribunal referred (en route to concluding that the appellant would not, if returned to Malaysia, be at risk of subjection to “significant harm”) was focused more on Islamic men than non-Islamic women, it was not peculiar to either category.
The appellant’s more significant complaint—and one that flows from that preliminary observation—is that the Tribunal did not evaluate the country information to which he referred in his written contentions.
Whether that information was within the Tribunal’s consciousness (to a degree sufficient to conclude that it was considered or, as the appellant puts it, “dealt with”) is a question of fact. The onus of establishing that it wasn’t rests with the appellant. Realistically, he can only establish that by inference. Whether or not the court should infer any want of consideration of what was advanced is a question that must be assessed “…by reference to the facts of each particular case and the [Tribunal’s] reasons as a whole [and t]he reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error”: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [76] (Perram, Murphy and Lee JJ). In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Griffiths, White and Bromwich JJ; “Carrascalao”), this court held (at 364 [48]) that:
…a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof.
Those observations were endorsed in CAR15, 150 [76] (Allsop CJ, Kenny and Snaden JJ).
The relevant inquiry is necessarily fact-dependent. It involves an evaluative judgment, taking into account the available evidence and reasonable inferences as to all the relevant facts and circumstances of a given case: Carrascalao, 364 [47] (Griffiths, White and Bromwich JJ). That judgment is formed as a function of impression, resting upon a qualitative assessment as to whether the decision-maker has, as a matter of substance, had regard to the representations made: Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643, 654 [45] (Rares and Robertson JJ, Flick J agreeing in the result).
In this case, the qualitative differences between the country information to which the Tribunal referred and the country information that the appellant advanced are not as pronounced as the appellant submits. Both sets, in terms, focused upon the treatment of Islamic trans-women, although neither was limited to that cohort. It is clear enough that the Tribunal was conscious that the appellant had submitted the country information upon which he relied. Indeed, it referred specifically to it in its reasons (see above, [15]) and recorded that its conclusion as to the prospect of the appellant suffering “significant harm” in Malaysia was formed “[c]onsidering [amongst other things] the country information as a whole” (above, [20]).
Two matters arise for consideration presently. The first is that the Tribunal was not obliged to refer to every piece of evidence placed before it, nor to explain “…the sub-set of reasons why it accepted or rejected individual pieces of evidence”: Buadromo, 333 [48] (Besanko, Barker and Bromwich JJ). Subject to the principles governing legal unreasonableness—which this ground of appeal does not engage—it was for the Tribunal to determine what weight it gave to the constituent parts of the evidence that was before it: Abebe v The Commonwealth (1999) 197 CLR 510, 580 [197] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 176 [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
Second, the Tribunal’s express reference to the country information that the appellant advanced—and the fact that the Tribunal’s Decision is, on any view, comprehensively reasoned—is significant. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (French, Sackville and Hely JJ), the court observed on that score (at 604 [47]) that an:
…inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.
In the circumstances that present here, the court cannot safely infer that the Tribunal proceeded to make the conclusions that it made blind to the matters that the appellant advanced. The existence of jurisdictional error in the form that the appellant alleges is not established; and the FCCA did not err in so concluding.
It follows that the appellant’s first ground of appeal is not made out.
GROUND TWO: FAILURE TO ADDRESS THE CORRECT STATUTORY TASK
By his second ground, the appellant charges the Tribunal with having erred by failing to assess whether his return to Malaysia might subject him to a real risk of significant harm comprised of cruel or inhuman treatment or punishment; specifically, in the form of severe mental pain or suffering. He contends that, had it done so, it might well have come to a different conclusion regarding his claim to complementary protection under s 36(2)(aa) of the Act.
It is plain that that was a case that the appellant advanced in support of his Visa Application (see above, [8]). In the material that he placed before the Tribunal (and before the Minister’s delegate), the appellant highlighted the psychological consequences to which he would likely be subjected upon return to Malaysia. Specifically, he noted that the treatment of lesbian and transgendered women in Malaysia was a potential source of fear, sadness and depression for him. The Tribunal correctly acknowledged that he had contended that, if removed from Australia, “…[he] will suffer serious or significant harm…including in the form of serious psychological harm…” (above, [16]).
The appellant’s complaint is that the Tribunal’s reasons do not, in terms, address whether the psychological impacts that might befall him in the event that he is removed from Australia are such as might qualify, individually or cumulatively, as cruel or inhuman treatment or punishment (and, thereby, as “significant harm” for the purposes of s 36(2)(aa) of the Act). He submits that, in the absence of some consideration of that possibility, the state of satisfaction that the Tribunal formed under s 36(2)(aa) of the Act (namely, that there was not a real risk that the appellant will suffer significant harm, as defined) was not a state of satisfaction that the Act authorised it to form. If that is correct, it will follow that the decision that arose therefrom (namely, that the Delegate’s Decision to reject the appellant’s Visa Application should be affirmed) was a product of jurisdictional error and is vulnerable to prerogative relief accordingly. It is not controversial to observe that the Tribunal was obliged to consider what the appellant advanced (see above, [26]); nor that it was obliged to complete its task upon “a correct understanding and application of the applicable law” (Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151, 155 [2] (Kiefel CJ, Gageler and Keane JJ)).
Again, whether the Tribunal should be understood to have overlooked an aspect of its statutory task is a question of fact (like any assessment of what was or was not considered in the course of making any given decision). In order that he might establish the want of consideration that he alleges, the appellant must persuade the court that it should infer from other circumstances that the Tribunal failed to take into account something of which it was obliged to take account.
To that end, the appellant notes that the Tribunal’s Decision does not, in terms, record any analysis of whether the potential psychological harm to which his contentions referred might amount to cruel or inhuman treatment or punishment. As his written submissions before this court put it:
…despite the relevant findings of fact [accepting that the appellant had been treated in in Malaysia in the various ways that he alleged], there was simply no consideration given by the Tribunal to the mental harm aspect of the statutory scheme. All of the analysis was, in effect, limited to whether the [a]ppellant would suffer the physical effects of similar misconduct in the future, not the mental effects…
From that absence of reference, the appellant contends, the court should infer that the question of mental pain or suffering did not factor in the mind of the Tribunal when it made its ultimate conclusion (namely, that the appellant is not at real risk of suffering significant harm in the event that he returned to Malaysia and was, therefore, not entitled to complementary protection under s 36(2)(aa) of the Act).
Respectfully, that contention proceeds upon an unfair reading of the Tribunal’s Decision as a whole. On its way to concluding that the appellant is not at real risk of suffering significant harm in the event that he is removed from Australia, the Tribunal:
(1)traced the applicable statutory definitions, including the definition of “cruel or inhuman treatment or punishment” in s 5 of the Act (above, [14]);
(2)correctly recorded (or summarised) the appellant’s contention that the significant harm to which he was at real risk of subjection if removed from Australia included harm in the form of psychological distress or impairment (above, [16]); and
(3)assessed the impact on the appellant of conduct that could only visit harm of a mental, rather than physical, nature (for example, conduct in the form of verbal abuse or discourtesy—above, [19]).
Together (if not individually), those circumstances disclose a consciousness of the case that the appellant advanced and the statutory test within the context of which he advanced it. That being so, the inference that the appellant urges the court to draw—namely, that the Tribunal’s conclusion vis-à-vis “significant harm” was reached without first considering whether the appellant is at real risk of subjection to cruel or inhuman treatment or punishment—cannot safely (and, therefore, should not) be drawn.
Again, the existence of jurisdictional error in the form that the appellant alleges by his second appeal ground is not established. Respectfully, the FCCA was correct so to find. The appellant’s second ground of appeal is not made out.
CONCLUSION
Neither ground of appeal is established. The appeal must (and will) be dismissed with the usual order as to costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 9 July 2021
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