AATA Case No. 1601328

1601328 (Refugee) [2016] AATA 4385 (6 September 2016)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1601328

COUNTRY OF REFERENCE: Malaysia

MEMBER: Amanda Goodier

DATE: 6 September 2016

PLACE OF DECISION: Perth

DECISION: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 06 September 2016 at 5:03pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant who claims to be a citizen of Malaysia applied for the visa [in] March 2015.

CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
6. Under s.5J(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. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
7. 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.

Mandatory considerations

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

Background

9. The applicant claims to be born on [date] in [his home town], Perak, Malaysia and is currently aged [age] years. He indicates he speaks, reads and writes English, his ethnic group is Malay and his religion Sunni Islam. He indicates he has never been married or in a de facto relationship. He provides no details of any family members. He indicates he departed Malaysia [in] March 2014, arriving in Australia as [in] March 2014. He indicates he departed legally on his own passport issued [in] 2013. He provides no details of any previous overseas travel and indicates he resided at the same address in [his home town] from [year] to March 2014. He indicates that he worked as a [occupation] in Kuala Lumpur from February 2010 to February 2014 and prior to that he worked as a [occupation] for a private company in Kuala Lumpur. He completed [number] years of education in Malaysia.
10. The applicant claims he fears returning to Malaysia as he is transgender. People made fun of him in Malaysia and teased him. He used to work as a [occupation] in a [workplace] and everyone disturbed him but he continued working. His [boss] regularly sexually harassed him. He felt so ashamed but continued to work as he needed the money to support himself. He eventually asked for help from a [friend] who used to [have connections in the media]. That night his boss and [other] friends raped him and he told his friend who reported everything in the [media]. If he returns to Malaysia, his boss will kill him and he will be in tension all his life. He states he did not return to his job the next day and [in] February 2014 [people] came to his house and beat him after making him nude. His parents came as well so those people warned him that they will kill him. His parents were really worried so they reported it to the police who just laughed His boss and his people can kill or rape him and do all sorts of things to him. The authorities are not good and are corrupt. They could find him anywhere. He was so afraid that his parents decided to send him to a place to be safe and he travelled to Australia. He was so afraid he did not move elsewhere and the police laughed at him when he tried to seek protection.
11. The delegate's decision which was attached to the application for review sets out the applicant's migration history. The applicant arrived in Australia [in] March 2014 as the holder of a [visa] that ceased [in] June 2014 and he subsequently became an unlawful non-citizen. He lodged this application [in] March 2015 and was granted an associated bridging visa. The applicant attended an interview with the delegate.
12. The delegate's decision restates the applicant's claims and provides further information following his participation in the interview. The applicant told the delegate as recorded in the delegate's decision that he was bullied as he is transgender. At the workplace they said bad things to him and his boss wanted to have sexual relations with him. He put his arms around the applicant who stopped him so his boss hit him. His boss did not want anyone to know that he wanted sexual relations with the applicant and told him if he told anyone he would do something to him. The applicant told his [friend] who worked for the [media]. His boss arranged for someone to go to his house to threaten him if the [news was publicised]. The applicant does not know how his boss found out about the [news]. The applicant told the delegate that the [news] cannot be found as it was not [publicised]. About [number] people came to his house and threatened him that if he [publicised] the [news] they will beat him and they pushed and shoved him. His boss did not rape him nor did they have sexual relations. He can't remember the written claims he made despite claiming to have written the claims for his application. After the people came to the house, the applicant's mother told him to go to the police so he went with his mother. The 2 police officers took a report and then laughed at him and his mother was very depressed. He does not have a copy of the report. His [relative] suggested he go to Australia so he booked a flight and went then applied for protection after a year. He cannot return to Malaysia as there is a law forbidding people like him. The police will arrest him and stop him from wearing women's clothes and make him cut his hair.
13. The delegate was satisfied the applicant was transgender based on the applicant's evidence during the interview. However found that the applicant was not credible in his story relating to his boss and his associates based on the inconsistencies in his evidence on this point. The delegate refers to the applicant indicating that his mother and siblings accept his transgender identity. He has been employed and since about 2005 has dressed 100% as a woman and been continuously employed. He also has a group of [friends] with whom he regularly socialises and whom are transgender. The delegate accepted he would experience discrimination and harassment but that it would not amount to persecution and that it would be possible for him to live as a transgender in various parts of the country, specifically KL.
14. At hearing, the applicant provided further information about specific matters. The applicant presented as a female at hearing. He told the Tribunal that he feels like a female in a male's body and has felt this way since he was a young child but his family were opposed. While his mother and siblings are somewhat more accepting of him, he dresses in jeans and T-shirt when he visits to save embarrassment and because he is fearful of the neighbours. He commented that his family are accepting of him as long as he does not behave as a woman. When he worked in Penang he started to dress as a woman eventually going to work and going out as a woman. He was fortunate his workplace was fairly accepting. He dressed as a female when he worked in KL but his boss continually made sexual advances and felt him inappropriately in the workplace. He is attracted to other men and was in a relationship with a man for a short period in Malaysia. He has been taking hormones since he was about [age] years but cannot afford them in Australia as they are very expensive. He told the Tribunal that he had transgender friends in Malaysia and had two transgender friends he met in [Australia], one was [ethnicity] and the other [ethnicity]. He socialised with them.
15. The applicant told the Tribunal that a friend assisted him to prepare the application for protection as he has little English language skills. The Tribunal notes the delegate's concern as to the credibility of the applicant's claims as to the harm he has experienced from his employer in KL. The Tribunal is prepared to accept that the applicant has exaggerated his particular claim in relation to the harm he experienced from his employer in KL but finds that this does not detract from the Tribunal's finding that the applicant is transgender and the subsequent findings made on the basis of the DFAT country information report as well as other country information referred to in Attachment B.
16. The Tribunal referred to the length of time he lived as a woman in Malaysia without difficulty. The applicant responded that he was constantly humiliated and in the workplace was humiliated because he was transgender. He was also very careful about where he went and avoided certain areas, dressed very conservatively and lived a very quiet life to avoid the Islamic police. He told the Tribunal that he liked living in Australia as it was much freer and he could dress as a woman and go out without worrying.
17. After considering the applicant's evidence, the Tribunal accepts that he is transgender and homosexual. The Tribunal accepts that while he has dressed as a woman to go out and to his workplace, he has been careful and lived a very quiet life to avoid detection. The Tribunal accepts his evidence that he has experienced humiliation because he is transgender and while he has maintained employment, he has experienced harassment in the workplace because he is transgender.
18. The most recent Department of Foreign Affairs and Trade (DFAT) country information report for Malaysia indicates that anal or oral sex is illegal under Malaysia's penal code and attracts a 20 year prison sentence; that the Malaysian government openly criticises lesbian, gay bisexual, transgender and intersex (LGBTI) individuals and has prohibited Muslims from engaging in such activities; that the Malaysian authorities have conducted LGBTI "rehabilitation" programs and run behavioural "correction" camps, including in schools; that transgender individuals and transgender Muslims have been arrested under Sharia law for impersonating women; and that transgender people who have been arrested have been subjected to physical and sexual violence in prison. DFAT notes that the level of discrimination faced by LGBTI people in Malaysia depends on their religion and socio-economic status; and that, Muslim men who identify as women face a high level of official and societal discrimination and a moderate level of societal violence. ^[1] The Tribunal notes that the applicant is Muslim and not from an affluent or well educated family.
19. Human Rights Watch reported in 2014 that transgender people face arbitrary arrest, physical and sexual assault, imprisonment, discriminatory denial of health care and employment and other abuses; and that discrimination against the LGBTI community is a persistent problem reinforced by government policy.^[2] Several other reports contain similar information^[3].
20. The Tribunal accepts that the persecution feared by the applicant is because of his membership of a particular social group of lesbian, gay, bi-sexual, transgender and intersex (LGBTI) persons in Malaysia. The Tribunal accepts that the group has a characteristic or attribute common to all members of the group which is not their shared fear of persecution and that the characteristic or attribute distinguishes the group from Malaysian society at large.
21. The Tribunal accepts the country information indicates there is widespread discrimination throughout the country against LGBTI persons in Malaysia fuelled by negative attitudes by prominent political leaders.^[4] The Tribunal accepts, based on this information, that LGBTI persons are targeted by police and religious authorities as well as members of their own community.
22. The Tribunal accepts on the country information referred to below that the applicant will be unable to change his gender on his national identity card which he must carry with him at all times. His physical appearance is that of a female while his identity card identifies him as a male. Based on country information, the applicant will be required to show his identity card for employment purposes, to obtain permanent accommodation well as attending at a medical treatment centres. Country information indicates that should he be stopped, his identity card identifies him as a male and Muslim and he is at risk of being arrested and charged with indecent behaviour as a man posing as a woman or as a man wearing women's clothes. Having to show his identity card to obtain these basic service increases the risk that he may be reported to the authorities for indecent behaviour. While the applicant has been able to obtain and hold employment in the past, country information indicates that he may have difficulty obtaining employment because he presents as female while his identity card states his gender as male. The Tribunal accepts the country information that indicates that as a Malay Muslim dressed as a female, should he be arrested, particularly by the Islamic police, he faces serious harm.
23. Having regard to the country information, the Tribunal accepts that the applicant faces a real chance of serious harm in the form of arrest, imprisonment, abuse in prison, physical violence and discrimination and because of his membership of a particular social group lesbian, gay, bi-sexual, transgender and intersex (LGBTI) persons in Malaysia.
24. The Tribunal is satisfied that the applicant cannot be expected to alter his sexual orientation or gender identity or act in a way that conceals his sexuality and gender identity in order to avoid harm.
25. The Tribunal is satisfied that the applicant's Muslim religion increases the chance of harm. The Tribunal is satisfied that the applicant's sexuality, gender identity and religion are the essential and significant reasons for the harm and that the harm is systematic and discriminatory in nature.
26. The Tribunal accepts the country information referred to that indicates that LGBTI persons cannot expect to be protected by the authorities and that in many instances the authorities themselves will be the persecutors. The Tribunal, based on the country information that the discrimination against and persecution of LGBTI persons is widespread and throughout the country, accepts that the applicant would not be able to seek effective protection from the authorities in any place within Malaysia. The country information illustrates that the applicant could not expect effective state protection under either religious laws or the laws of the State, as the State's apparatus is set up to enforce behaviour contrary to the applicant's life decision.
27. The Tribunal finds, on the basis of the evidence before it, that the applicant would face a real chance of serious harm in Malaysia because he is a LGBTI person in Malaysia were he to return now or in the reasonably foreseeable future.
28. The Tribunal accepts on the evidence before it, that the applicant has a well-founded fear of persecution as required by s.5J of the Act and therefore finds that he is a refugee within the meaning of s.5H and satisfies the criterion set out in s.36(2)(a).

Conclusions

29. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

DECISION

30. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Amanda Goodier
Senior Member

ATTACHMENT A

Extract from Migration Act 1958

5 (1) Interpretation

...

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.
...
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or

(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c) for the purpose of intimidating or coercing the person or a third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) if the non-citizen has no country of nationality-a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
...

5J Meaning of well-founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c) the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3) 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; or

(c) without limiting paragraph (a) or (b), require the person to do any of the following:

(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

(ii) conceal his or her true race, ethnicity, nationality or country of origin;

(iii) alter his or her political beliefs or conceal his or her true political beliefs;

(iv) conceal a physical, psychological or intellectual disability;

(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b) the persecution must involve serious harm to the person; and

(c) the persecution must involve systematic and discriminatory conduct.

(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to the person's life or liberty;

(b) significant physical harassment of the person;

(c) significant physical illtreatment of the person;

(d) significant economic hardship that threatens the person's capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

(6) In determining whether the person has a wellfounded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a wellfounded fear of persecution for the reason of membership of a particular social group that consists of the first person's family:

(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b) disregard any fear of persecution, or any persecution, that:

(i) the first person has ever experienced; or

(ii) any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person's family) if:

(a) a characteristic is shared by each member of the group; and

(b) the person shares, or is perceived as sharing, the characteristic; and

(c) any of the following apply:

(i) the characteristic is an innate or immutable characteristic;

(ii) the characteristic is so fundamental to a member's identity or conscience, the member should not be forced to renounce it;

(iii) the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a) protection against persecution could be provided to the person by:

(i) the relevant State; or

(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a) the person can access the protection; and

(b) the protection is durable; and

(c) in the case of protection provided by the relevant State-the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

..

36 Protection visas - criteria provided for by this Act

...

(2A) A noncitizen will suffer significant harm if:

(a) the noncitizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the noncitizen; or

(c) the noncitizen will be subjected to torture; or

(d) the noncitizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the noncitizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a noncitizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the noncitizen to relocate to an area of the country where there would not be a real risk that the noncitizen will suffer significant harm; or

(b) the noncitizen could obtain, from an authority of the country, protection such that there would not be a real risk that the noncitizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the noncitizen personally.

...

ATTACHMENT B

COUNTRY INFORMATION

A paper by Teh Yik Koon, presented at the Fourth International Malaysian Studies Conference held from 3-5 August 2004 at the Universiti Kebangsaan Malaysia, looks at the situation of male to female transsexuals, known as mak nyahs, in Malaysia. The paper indicates that "[g]enerally the present Malaysian society perceive this community in a negative manner, labeling them as sexual deviants, without ever knowing anyone of them or having an understanding on the concepts of gender, sexuality and transsexualism." The paper includes details of "research carried out in 2000 on 507 mak nyah respondents on their characteristics." It is stated in the paper that:

The Malaysian term for male to female transsexuals is mak nyah (Teh, 1998: 169). This term refers to those who have undergone sex change operations as well as to those who have not. It has been estimated that there are about 10,000 mak nyahs in the country (Teh, 1998: 169). About 70% to 80% are Malay; the rest are made up of Chinese, Indian and other minority ethnic groups. Islam is the religion of the Malay population and is the official religion of Malaysia. The majority of mak nyahs are Muslim.

Islam permits only khunsa or hermaphrodites to undergo a sex change operation so that the person can be either a female or a male (Teh, 2002; 46). However, Islam forbids males to behave like females in terms of cross-dressing, wearing make-up, injecting hormones to enlarge their breasts, and undergoing sex change operations.

In 1983, the Conference of Rulers in Malaysia decided that a fatwa prohibiting sex change operations should be imposed on all Muslims, with the exception of hermaphrodites (Teh, 2002; 46). Cross-dressing is also prohibited. Thus, Muslim mak nyahs are considered to violate the tenets of Islam, and consequently are non-entities in Malaysian society. They could be charged in the Syariah Court for violating the tenets of Islam.

Non-Muslim mak nyahs are mainly Buddhists, Christians or Hindus. They are generally allowed to be mak nyahs, although their religion may not allow it. This is because there are no official religious rulings, as there are among Muslims, to enforce the prohibition. Occasionally, they are caught by the police for cross-dressing, and charged with indecent behaviour under section 21 of the Minor Offences Act 1955.

...The mak nyahs had a better standard of living during the colonial days (Teh, 2002; 129-130). There were less sex workers then as compared to present day. Many were Mak Andams (bride's attendants), joget dancers, cooks or artistes. In my interview with a 63 years old mak nyah, it was related that mak nyahs during the colonial time were a happy lot as they were left to be who they wanted to be. The police and the Islamic religious authorities did not harrass them. The police were good to them and accepted them as they were. Sometimes, the police even gave them a treat, but never asked them for any favours. Many mak nyahs went overseas to have their sex change operation as they could afford it since they were earning good money. Those who had their sex change operations could have their names and gender in their identity cards changed to that of females.

Today most mak nyahs in Malaysia are employed as sex workers. More than a third of them live below the poverty line of RM500 (Teh, 2002; 56-57). Only a small percentage (4%) of transsexuals actually obtain higher educational degrees. The community as a whole suffers high levels of discrimination, which limits their ability to acquire well-paid jobs and this contributes to their relative impoverishment. The current conditions vary sharply from earlier years, where the community faced less stigma and had greater employment opportunities.

The changing status of transsexuals in Malaysia was closely tied to changes in the political climate, notably the ability of the community to obtain a sex change operation. Before 1983, sex change operations were carried out in Malaysia, although few in number due to the lack of qualified surgeons specializing in this area. The Universiti Hospital (University Malaya Medical Centre) was one of a few hospitals that performed sex change operations. The University Hospital had very meticulous procedures in place before it would carry out an operation. For example, a transsexual patient opting for sex change operation would have to undergo two years of pre-counseling to ensure that the operation was really what the patient wanted. They would also have to go through two years of post-counseling so that they could adjust to their new roles.

The fatwa that was decreed by the Conference of Rulers in 1983 changed the whole scenario. Muslim mak nyahs, with the exception of khunsas, are banned from having the sex change operations. Muslim surgeons are also prohibited from carring out sex change operations. The immediate effect of the law was to increase the stigmization of the transsexual community. Muslim mak nyahs were now considered violators of the tenets of Islam, and consequently less moral.

The religious non-acceptance and stigmization of the mak nyahs has increased discrimination against them. Besides having problems getting decent paying jobs, they were teased and called derogatory names, they have problems renting a place to live, getting bank loans to purchase their own homes and legally adopting children as they are considered unfit parents (Teh, 1998; 176-179). The mak nyahs who have had a sex change operation cannot change their names and gender in their identity cards to that of females. They could only add their new female names beside their original ones on their identity cards, but their gender remains the same. The lack of a genuine official gender status creates problems for them; they cannot purchase health insurance because they have female organs while their identity cards state that they are males. They also have problems at the immigration as they look female, but their documentation states that they are males. The impact has negatively affected the quality of life of this community.^[5]

An Immigration and Refugee Board of Canada response to information request dated 30 August 2005 on the treatment of sexual minorities in Malaysia indicates that "[w]hile there are no laws prohibiting sex reassignment surgery or gender reassignment therapy, no laws allow Malaysian transsexuals to officially change their gender on public documents (The Malaysian Bar 1 Feb. 2005). In addition, the Council of Rulers purportedly forbids Muslims from undergoing sex change operations (ibid.)." The response to information request includes the following information on transsexuals in Malaysia:

A 10 November 2004 article published in The Malay Mail cited the leader of a Presbyterian church as saying that his church would offer pastoral counselling to transsexuals.

Transsexuals

An article published by The Malaysian Bar estimated that the proportion of transsexuals in Malaysian society could be as high as one in every 200 individuals (1 Feb. 2005). While there are no laws prohibiting sex reassignment surgery or gender reassignment therapy, no laws allow Malaysian transsexuals to officially change their gender on public documents (The Malaysian Bar 1 Feb. 2005). In addition, the Council of Rulers purportedly forbids Muslims from undergoing sex change operations (ibid.). According to The Malaysian Bar,

[b]ecause transsexuals cannot change their identification cards, they face constant harassment and persecution from the police and religious authorities, cannot undergo burial rites in accordance with their religious beliefs, are often refused employment, are deprived of the right to marry lawfully although they are fully functioning members of their chosen sex and are exposed to other dangers such as hate crimes when their sex at birth is revealed. The transsexual community has reported harassment and discrimination even in attempting to open a bank account or applying for a passport. They also face difficulty in finding employment because employers inevitably learn that they were born in the other sex. There are no laws in Malaysia that rule that discrimination against transsexuals at work is unlawful (1 Feb. 2005).

In March 2005, the Taiping Religious Department allegedly arrested a man wearing women's clothes while he was sitting in the garden of a friend's house (Sunday Mail 20 Mar. 2005; see also New Straits Times 7 Apr. 2005). When the officers realized that the transsexual was not Muslim, they promptly released him; the man later complained to police on the grounds of "wrongful arrest, abuse of power and brutality" (Sunday Mail 20 Mar. 2005). While the government does not have any data on the number of people arrested in Malaysia for being transsexual, the Minister of the Women, Family and Community Development Ministry said that there were no Malaysian laws against transsexuals or transvestites since the expression of either of these identities does not break any Malaysian laws (Malaysian Bernama 14 Sept. 2004). However, according to The Malaysian Bar, when transsexuals are detained by police, many end up being victims of sexual violence such as being forced to strip (1 Feb. 2005).

In November 2004, several sources reported that a man who had undergone a sex change and was previously a woman lost his bid to the Ipoh High Court to be legally recognized as a male (The Malaysian Bar 1 Feb. 2005; Sunday Mail 21 Nov. 2004; New Straits Times 20 Nov. 2004; ibid. 16 Nov. 2004; Malaysian Bernama 4 Nov. 2004; see also BBC 5 Nov. 2004). While the High Court stated that Malaysian law did not recognize transsexuals, the deputy home minister declared that the Birth and Death Act of 1957 "will be studied for amendments to cater [to] transsexuals who have undergone sex changes" (Sunday Mail 21 Nov. 2004). As well, the government has indicated that it would consider allowing transsexuals to state their new gender in passports and identity cards, provided that certain laws are amended (New Straits Times 16 Nov. 2004). While two lawyers have agreed to represent the transsexual pro bono in an appeal (New Straits Times 20 Nov. 2004), no information on the outcome of this appeal could be found among the sources consulted by the Research Directorate.

According to the Sunday Mail, the Bar Council, non-governmental organizations and religious groups support the rights of transsexuals in Malaysia (21 Nov. 2004). However, the Sunday Mail article adds that many transsexuals have difficulty finding employment (Sunday Mail 21 Nov. 2004; New Straits Times 16 Nov. 2004) and are sometimes abandoned by their families (Sunday Mail 21 Nov. 2004). Possibly as a result, many allegedly turn to prostitution (The Malaysian Bar 1 Feb. 2005; New Straits Times 16 Nov. 2004)^[6].

According to an article dated 1 February 2005 on The Malaysian Bar website "[o]ne of the biggest problems faced by the transsexual community in Malaysia is that of exclusion". It is stated in the article that:

One of the biggest problems faced by the transsexual community in Malaysia is that of exclusion. The transsexual community has frequently been overlooked and excluded from decisions that affect their welfare, livelihood and legal status. While it is true that the Women and Family Development Ministry had in 2000-2001 announced its intention to look into the problems of the transsexual community and to provide such assistance as they could, there was, prior to 2001, no ministry regarded as appropriate to hear and handle issues pertaining to the transsexual community; and transsexuals continue to be heavily marginalised, underrepresented and misunderstood.^[7]

The following documents provide further information on the treatment of transsexuals in Malaysia:

A Bernama Daily Malaysian News article dated 29 November 2008 indicates that "UN resident coordinator (Malaysia) Kamal Malhotra" had "said the number of HIV-infected people was on the rise, instead of decreasing" in Malaysia. Malhotra said that Malaysia "needed to focus its resources on five high-risk categories", including transsexuals ('HIV cases in Malaysia on the rise, says UN coordinator.'

Another Bernama Daily Malaysian News article dated 25 November 2008 refers to "Deputy Women, Family and Community Development Minister Noriah Kasnon" saying "the ministry had prepared capacity building programmes for transsexuals." The article continues:

"In the women and single mother's programme, we provide trainings in handicraft, tailoring, bakery and beauty therapy which are open to them."

"With the knowledge and skills, the transsexual groups could get a job or venture into their own business," she said in reply to Dr Lo' Lo' Mohamad Ghazali (PAS-Titiwangsa) who wanted to know about the aid provided by the government to transsexuals ('Over 7,000 prostitutes busted in "Ops Noda" since 2003'

Sections 377a and 377b of the Penal Code, which detail provisions on "carnal intercourse against the order of nature", have created an environment that allows for discrimination against lesbians, gays, bisexuals and transsexuals and have been used by the government to silence political dissent. Section 377b details the possible punishment for "unnatural" consensual sex, which includes whipping and imprisonment of up to twenty years. In its submission to the UN Universal Periodic Review, February 2009, Amnesty International recommended, among other things, the repeal of Articles 377A and 377B to prevent discrimination against lesbians, gays, bisexuals and transsexuals.^[8]

Such provisions give the police enormous powers to harass without redress. Activists in South Asia point to "Police powers that are unregulated, and police corruption," as primary concerns, including "violence at sex sites from police and hooligans, indiscriminate use of laws against 'public nuisance" ..and denial of public space for sexual minorities".^[9]
A press release by Amnesty International confirms the State's arm of the law: the police's, attitude towards transsexuals. The article sets out how Ayu, a male-to-female transsexual, was seriously beaten by state religious officials who detained her while she was talking to friends at the Old Melaka bus station in Kota Melaka, Melaka (Malacca) state, southwest Malaysia at around 11.30pm on 30 July. According to the press release:
Ayu may be at risk of further abuse, and other transsexual people may also be in danger. Ayu was reportedly approached by three enforcement officers from the Melaka Islamic Religious Affairs Department (Jabatan Agama Islam Melaka, JAIM), a local government body tasked with enforcing social norms based on Sharia law.
The officials, all dressed in civilian clothes, reportedly punched and kicked Ayu when they detained her. One of them reportedly kicked her hard in the genital area. They only identified themselves as JAIM officials when bystanders intervened to try to prevent the assault. When she said she was in serious pain, they took her briefly to the local JAIM office, before transferring her to Melaka General Hospital. She had to undergo surgery on 31 July for a pre-existing abdominal hernia condition, which had been aggravated by the assault.^[10]
This same press release indicates that abuses against "transsexual people appear to be rising in Malaysia at the hands of both the ordinary and the so-called 'religious police' like JAIM and that "there are fears that such actions may be creating a climate of vigilantism amongst community groups and society at large against those whose sexuality or gender identity is perceived to deviate from the 'norm'...".
The State's approach to transsexuals and those considered not to conform to what is considered the norm, is not assisted by the fact that Malaysia has yet to ratify several key human rights treaties generally, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.^[11]
In terms of human rights in general in Malaysia, the above report records:
Reforming the National Human Rights Institution
Almost ten years after the creation of Suruhanjaya Hak Asasi Malaysia (SUHAKAM) through the Human Rights Commission of Malaysia Act 1999, the national human rights institution (NHRI) faces a possible status downgrade from "A" to "B" by the International Coordinating Committee of National Human Rights Institutions after failing to comply with the Paris Principles for an independent and effective NHRI. If downgraded, SUHAKAM will lose its right to participate in the regular sessions of the UN Human Rights Council and will be relegated as a non-voting member of the Asia Pacific Forum on Human Rights Institutions. Civil Society has criticised SUHAKAM for being limited to submitting its opinions and reports to the government and not having any enforcement authority to protect human rights. The institution continues to undertake a number of public inquiries on certain cases and it produces an annual report; however, these are not tabled in the Parliament. On several occasions, SUHAKAM has refused to hold public inquiries on allegations of human rights violations, because its mandate restricts it from doing so when a case has been brought to court.
Infringements on human rights in national legislation
The government routinely uses administrative detention laws and other restrictive legislation to deny individuals freedom from arbitrary detention, the right to a fair trial and other human rights. These include the Internal Security Act 1960 (ISA), the Emergency Public Order Preventive Ordinance 1969 (EO), the Dangerous Drugs (Special Preventive Measures) Act (DDA) 1985, the Restricted Residence Act 1933 and other restrictive laws such as the Sedition Act 1948 (revised 1969), the Printing Presses and Publications Act 1984 (PPPA), and the Official Secrets Act 1989(OSA).
The government continues to use or threaten to use the Internal Security Act 1960 (ISA) against perceived critics of the government, individuals who distribute alleged "false news" through short messaging service (SMS), persons described as suspected foreign agents and people allegedly involved in "terrorist-linked" activities. It allows for detention without trial for up two years renewable indefinitely, without the detainee being charged with a crime or tried in a court of law. It limits the political space for important debates on issues of economic policy, corruption and other social challenges. The government has extended the use of the ISA to cover criminal activities such as human trafficking, currency counterfeiting, forgery of passports and identity cards...
Torture and other ill-treatment by police
The period in review saw incidents of torture and other ill-treatment by police during arrest and interrogation. These incidents involve mainly plain-clothes officers of the Special Branch and the Federal Reserve Unit who appear to act with impunity...
The government has also authorised an estimated hundred of thousands of armed civilian volunteers, a group called the Ikatan Relawan Rakyat (Rela), to help maintain public order and arrest undocumented migrations, including refugees recognized by the United Nations High Commissioner for Refugees (UNHCR). Rela volunteers have repeatedly been accused by local and international non-government organizations of employing unnecessary force and illegal policing methods in the course of their work.^[12]

^[1] DFAT, 2016, DFAT Country Information Report Malaysia, 19 July:pp20-21.
^[2] Human Rights Watch, 2014, I'm Scared to be a Woman: Human Rights Abuses against Transgender People in Malaysia, September;
^[3] See for example Freedom House, 2015, Freedom in the World, 2015 -Malaysia; US Department of State, 'On the record: Violence against Lesbians, Bisexual women and Transgender Persons in Malaysia, [13 May] International Gay and Lesbian Human Rights Commission website; US Department of State, 2016, Malaysia 2015 Human Rights Report
^[4] DFAT, 2016, DFAT Country Information Report Malaysia, 19 July:p21.
^[5] Teh, Y.K. 2004, 'The male to female transsexuals in Malaysia: what should we do with them?', Paper presented at the Fourth International Malaysian Studies Conference, 3-5 August 2004, Universiti Kebangsaan Malaysia http://phuakl.tripod.com/pssm/conference/day236.doc - Accessed 12 June 2009 .
^[6] Immigration and Refugee Board of Canada 2005, MYS100434.E - Malaysia: Treatment of sexual minorities (August 2004 - August 2005), 30 August.
^[7] Wong, E.L. 2005, 'Neither Here Nor There: the Legal Dilemma of the Transsexual Community in Malaysia', The Malaysian Bar website, 1 February http://www.malaysianbar.org.my/gender_issues/neither_here_nor_there_the_legal_dilemma_of_the_transsexual_community_in_malaysia.html - Accessed 12 June 2009.
^[8] See Malaysia: Amnesty International Submission to the UN Universal Periodic Review: Fourth Session of the UPR Working Group of the Human Rights Council, February 2009:
http://www.amnesty.org/en/library/asset/ASA28/003/2008/en/b8d828ab-9075-11dd-b16...]
^[9] Human Rights Watch 2009, 'Together, apart: Organizing around sexual orientation and gender identity worldwide', HRW website, June http://www.hrw.org/sites/default/files/reports/Igbt0509webcovr.pdf
^[10] Amnesty International 2007, 'Malaysia: Fear for safety/torture or ill-treatment', AI website, 3 August
http://web.amnesty.org/library/Index/ENGASA280022007?open&of=ENG-MYS
^[11] Malaysia: Amnesty International Submission to the UN Universal Periodic Review: Fourth Session of the UPR Working Group of the Human Rights Council, February 2009:
http://www.amnesty.org/en/library/asset/ASA28/003/2008/en/b8d828ab-9075-11dd-b16...
^[12] Malaysia: Amnesty International Submission to the UN Universal Periodic Review: Fourth Session of the UPR Working Group of the Human Rights Council, February 2009:
http://www.amnesty.org/en/library/asset/ASA28/003/2008/en/b8d828ab-9075-11dd-b16...