1603598 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Protection visa. The applicant, a national of Malaysia, claimed to fear persecution upon return to her home country due to her homosexuality and perceived non-conformity with societal expectations, including cross-dressing. She asserted that Malaysian society, influenced by Sharia law, discriminates against homosexuals and the LGBTI community, leading to potential mistreatment, inability to find employment, and torture.

The central legal issue before the Tribunal was whether Australia owed protection obligations to the applicant under the Migration Act 1958. This required determining if the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and if such persecution would involve serious harm. The Tribunal also had to consider whether effective protection measures were available to the applicant in Malaysia and if she could take reasonable steps to avoid persecution by modifying her behaviour.

The Tribunal accepted the applicant's identity and nationality as Malaysian and found no evidence suggesting she had a right to reside in a safe third country. Applying the principles of section 5J of the Migration Act, the Tribunal considered the applicant's fear of persecution based on her sexual identity, which it viewed as a characteristic fundamental to her identity and potentially an innate or immutable one, distinguishing her from the broader society in Malaysia. The Tribunal also had regard to country information regarding the treatment of homosexual individuals in Malaysia. Ultimately, the Tribunal concluded that the applicant was a person in respect of whom Australia had protection obligations.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act, indicating that she has a well-founded fear of persecution.