1603040 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa. The applicant, a Malaysian citizen, claimed to fear persecution in Malaysia due to being transgender. The Tribunal was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), which relates to a well-founded fear of persecution, or alternative complementary protection grounds.

The Tribunal's reasoning focused on assessing the applicant's claims against the legal framework for protection visas. It noted that while the onus of proof rests with the applicant, a decision-maker is not obliged to accept all allegations uncritically. However, in this instance, the Tribunal found the applicant to be a credible witness. The Tribunal also considered relevant country information and policy guidelines, including Ministerial Direction No. 56.

Applying these considerations, the Tribunal concluded that the applicant had a well-founded fear of persecution in Malaysia on the basis of being transgender. The Tribunal found that the characteristic of being transgender is an innate or immutable characteristic, fundamental to the applicant's identity, and that concealing this characteristic would be unreasonable. Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criterion under section 36(2)(a) of the Migration Act.