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Tribunal: Member Rosa Gagliardi

A delegate of the Minister for Immigration and Border Protection refused the applicant a Protection visa. On 2 May 2018, the Administrative Appeals Tribunal remitted the decision.   

The applicant was a citizen of Malaysia who claimed he could not return to Malaysia due to his homosexuality. He claimed that in Malaysia he was subject to discrimination and abuse. He was subject to violence by his family and shunned from the family home. He claimed he left for Australia and has lived as a gay man since.

Section 36 of the Migration Act 1958 (the Act) sets out the criteria to be satisfied for a Protection visa. These criteria may be satisfied if the applicant is found to be a person in respect of whom Australia has protection obligations because they are unable or unwilling to return to their country because of a well-founded fear of persecution.[1] A person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[2]

The Tribunal considered the credibility of the applicant and was convinced that the applicant’s account was reflective of his experiences in Malaysia. The applicant’s narrative was detailed and it was evident that the applicant had experienced significant psychological turmoil about his sexuality, particularly from his family. The Tribunal was required to find that the persecution of the applicant would involve serious harm.[3]  At hearing the applicant recounted instances where he had been taunted, humiliated and forced to conceal his sexuality. The Tribunal found that this constituted significant harm and that there was a real chance that the applicant would suffer persecution by way of isolation, violence and systematic discrimination in Malaysia if he were to return now or in the foreseeable future. This conclusion was based on a range of information that explained the treatment of lesbian, gay, bisexual, trans, and/or intersex (LGBTI) people in Malaysia gleaned from reports including those published by the Department of Foreign Affairs and Trade (DFAT), Human Rights Watch and the US Department of State.

The information explained that the Malaysian Government openly criticised members of the LGBTI community, public demonstrations of support for the LGBTI community are banned, programs aimed at rehabilitating suspected LGBTI youth are openly run in certain parts of the country and these individuals face a moderate risk of official and societal discrimination on a day-to-day basis. Many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.

The Migration Act also provides that a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would: (a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or (b) conceal an innate or immutable characteristic of the person, among other things.[4] The Tribunal found that the applicant’s homosexuality was his identity and that to avoid a real chance of persecution he would be required to modify his behaviour to the point of concealing an innate or immutable characteristic.

Based on this information and the applicant’s credibility, the Tribunal was satisfied that the applicant had a well-founded fear of persecution on the basis of being a gay man in Malaysia. The Tribunal found that this was a particular social group within the Migration Act 1958.[5] 

For the reasons given above, the Tribunal was satisfied that the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(a) and the Tribunal remitted the matter with this direction.

Read the full written decision on Austlii

[1] Section 5H of the Migration Act 1958

[2] Section 5J of the Migration Act 1958

[3] Subsection 5(4)(b) of the Migration Act 1958

[4] Section 5J(3) of the Migration Act 1958

[5] The Tribunal found that gay men in Malaysia belong to a particular social group as defined by s.5L of the Migration Act 1958