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In May 2018, Malaysia saw its first change of government since independence.
In its election manifesto, the new government promised to abolish oppressive laws and make Malaysia’s human rights “respected by the world”.
However, little has been done to address the issue of sexual orientation and gender identity.
Article 8 of the Constitution protects the right to equality before the law for all citizens regardless of religion, race, descent, place of birth, or gender. Sexual orientation and gender identity are not included in this list.
The Malaysia Penal Code does not specifically refer to homosexuality but deals with actions that go against the ‘order of nature’. Article 337A of the Penal Code, states: ‘Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.
Article 377B of the Penal Code, states: ‘Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years and shall also be punished with whipping.
As noted in the US Department of State’s human rights report for 2019 (USSD Report 2019) published in March 2020: “Authorities often charged transgender persons with “indecent behaviour” and “importuning for immoral purposes” in public. Those convicted of a first offense faced a maximum fine of RM25 ($6.25) and a maximum sentence of 14 days in jail. The sentences for subsequent convictions are fines of up to RM100 ($25) and up to three months in jail.”
Malaysia has 13 states and 3 federal territories. All have state-enacted Islamic laws that prohibit same-sex relations and criminalise trans women based on their gender identity and gender expression, while some criminalise trans men. Malaysia is one of the few countries in the world that locks people up simply for being transgender.
Several sources noted that in August 2018 the country’s oldest gay bar, the Blue Boy club, had been raided. Twenty men were detained and ordered into counselling for illicit behaviour.
Several sources reported that in August 2018 a sharia court ordered a lesbian couple to be caned after they were caught having sex in their car.
Several sources reported in November 2019 that 5 men were sentenced to jail, fines and caning by the Selangor Syariah High Court for attempted sexual intercourse following a 2018 raid on an apartment. Four of the
5 men were caned and released pending appeal of their jail sentence and the fifth was hoping to appeal his entire sentence. A further 6 individuals were due to face trial on the same charges.
The Asia Pacific Transgender network report of 2017 noted that: “Trans people in Malaysia face systemic and widespread stigma and human rights violations. Muslim trans people are subject to arrests, harassment and assault from federal, state, and local Islamic religious authorities, and often avoid reporting these incidents for fear that the police will not protect them.”
If you have a well-founded fear of persecution due to your gender identity or sexual orientation in Malaysia, you may be eligible for a Protection visa (subclass 866).
The first requirement states that you must fear persecution for at least one of five reasons specified in the Act:
LGBTI persons in Malaysia form a particular social group (PSG), within the meaning of the Refugee Convention because they share an innate characteristic or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to their identity or conscience that they should not be forced to renounce it, and have a distinct identity which is perceived as being different by the surrounding society.
Although LGBTI persons in Malaysia form a PSG, establishing such membership may not be sufficient to be recognised as a refugee.
Our Immigration Lawyers can help you with your Onshore Protection Visa. Most of our LGBTI protection visa clients are international students and tourists who fear to return to their home country and would like to stay in Australia permanently. We have a proven success record in assisting nationals of Malaysia.
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Well-founded fear of persecution The Act states that a person has a well-founded fear of persecution if:
The complimentary protection provisions enable visa applicants to claim protection on broader grounds than those contained in the Refugee Convention, reflecting Australia’s obligations under international human rights law.
International human rights law precludes countries from sending people back to places where they face a real risk of being arbitrarily deprived of their life, or a real risk of being tortured or exposed to other cruel, inhuman or degrading treatment or punishment.
Section 36(2A) of the Migration Act 1958 (Cth) largely gives effect to those obligations in domestic law. People at risk of this kind of harm are eligible for a protection visa. In this way, human rights law provides a ‘complement’ to protection under the Refugee Convention, hence the name ‘complementary protection’.
Specifically, section 36(2A) provides that Australia is not permitted to remove people to countries where they face a real risk of one or more of the following:
Complementary protection introduced greater efficiency, transparency and accountability into Australia’s protection regime. Prior to March 2012, Australia was unable to guarantee that people who did not meet the refugee definition in the Refugee Convention, but who nonetheless faced serious human rights abuses if returned to their country of origin or habitual residence, would be granted protection.
There are two types of particular social groups described in the Act. One provides criteria to be met if a person claims to have a well-founded fear of persecution because they are a member of a particular social group that consists of their family. The other type provides that a person will be a member of a particular social group if:
To have a well-founded fear of persecution, the persecution feared must involve serious harm to the person. Serious harm includes, but is not limited to:
To have a well-founded fear of persecution, the persecution feared must also involve systematic and discriminatory conduct.
This means that if the serious harm feared by the person is not directed at them or a group to which they belong, for one of the five reasons above, the person does not have a well-founded fear of persecution and will not be a refugee.
For the fear of persecution to be well founded, there must be a ‘real chance’ that the persecution would happen in the reasonably foreseeable future if the person was to return to their home country. Real chance means that the fear of persecution is not remote or far-fetched.
If there is a place in their home country where the person can live without a well-founded fear of persecution, they will not be a refugee. However, they must be able to safely and legally access that place.
If the government or other parties that control all or a large part of the person’s home country is willing and able to offer effective protection to the person, they might not meet the definition of refugee. However, the person must be able to access the protection and the protection must be of a durable nature (provided on an ongoing basis). If the protection is able to be provided by the government, the protection must also include an appropriate criminal law, a reasonably effective police force and an impartial judicial system. If this protection is able to be provided, the person does not have a well-founded fear of persecution and will not be a refugee.
If a person has a right to enter and reside in another country in which they do not fear persecution or significant harm, they must take all possible steps to exercise that right. If they do not, they might not be a refugee.
According to the Act, a person does not have a well-founded fear of persecution if they can take reasonable steps to modify their behaviour so as to avoid a real chance of persecution their home country. However, this would not be the case if such a change would:
If you are eligible, yes you can. The Protection (866) Visa can only be lodged whilst you are in Australia.
There are 4 different offshore visas that you may be eligible to apply for. They are the Refugee (200) Visa, the In-Country Special Humanutarian (201) Visa, the Emergency Rescue (203) Visa and the Woman At Risk (204) Visa.
You must be in Australia, and arrived here legally, on a valid visa, and be immigration cleared on arrival. You must also be a genuine refugee, meet the DHA’s identity requirements, not have held specific visas and more.
Yes, the DHA will interview you to discuss the claims on your application.
A protection visa holder with Condition 8559 must apply to the DHA for permission to travel to their home country before they depart.
To have a well-founded fear of persecution, a person must fear serious harm because of their race, religion, nationality, membership of a particular social group and/or political opinion.
