1601328 (Refugee)

This matter concerned an application for review of a decision made by a delegate of the Minister for Immigration, concerning the protection claims of an applicant who feared returning to Malaysia. The applicant, who identified as transgender, alleged that upon return to Malaysia, they faced a real risk of being killed by their former employer, who had previously raped them, and that Malaysian authorities were corrupt and unable to provide protection.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically whether Australia had protection obligations under section 36(2)(a) of the *Migration Act 1958* (Cth) due to a well-founded fear of persecution. This required consideration of whether the applicant would suffer significant harm, as defined by section 36(2A) of the Act, and whether any risk was a real risk that could not be mitigated by effective protection measures or reasonable steps to relocate within Malaysia.

The Tribunal considered extensive country information regarding the treatment of transgender individuals in Malaysia, including legal prohibitions on sex change operations for Muslims, societal stigma, discrimination in employment and housing, and instances of harassment and violence by authorities. The Tribunal also had regard to the applicant's specific claims of past persecution, including sexual assault and threats to their life. Applying the principles of section 36(2)(a) and the relevant guidelines, the Tribunal was satisfied that the applicant had a well-founded fear of persecution for reasons of membership of a particular social group, and that Australia had protection obligations towards the applicant.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied section 36(2)(a) of the *Migration Act*.