1511751 (Refugee)

The applicant, a citizen of Malaysia, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to fear persecution in Malaysia due to their LGBTI identity and their same-sex relationship, asserting that state protection was unavailable. The matter came before Sean Baker, acting as a delegate of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant held a well-founded fear of persecution for reasons of membership of a particular social group, specifically LGBTI individuals in a same-sex relationship in Malaysia, and whether the Malaysian government was unable or unwilling to offer protection. This required an assessment of the objective country information regarding the treatment of LGBTI individuals in Malaysia and the effectiveness of any legal or practical protections offered by the Malaysian state.

In reaching its decision, the Tribunal considered evidence relating to the legal framework and societal attitudes towards LGBTI individuals in Malaysia. It examined reports detailing instances of discrimination, harassment, and violence directed at this group, as well as the capacity and willingness of Malaysian authorities to prevent and redress such harm. The Tribunal applied the principles established in refugee law concerning the definition of a "particular social group" and the assessment of a well-founded fear of persecution, including the requirement to consider the availability of state protection.

The Tribunal found that the applicant did not hold a well-founded fear of persecution for a Convention reason. Consequently, the application for a protection visa was refused.