1603678 (Refugee)

The applicant, a national of Malaysia, sought a protection visa in Australia. The applicant claimed to have left Malaysia due to her homosexuality, fearing arrest by the Department of Islamic Religion and questioning of her family by authorities upon return. She also alleged an affair with another man's wife, leading to a revenge motive from the man's underground group. The applicant did not claim prior harm in Malaysia, nor did she seek assistance there, believing the state would not protect her due to its stance on homosexuality. The Tribunal considered the applicant's claims against sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth).

The legal issues before the Tribunal were whether Australia owed protection obligations to the applicant under the Migration Act. This involved determining if the applicant had a well-founded fear of persecution for reasons of membership of a particular social group (homosexuality) or if there were substantial grounds to believe she would suffer significant harm as a necessary and foreseeable consequence of removal to Malaysia, pursuant to sections 36(2)(a) and 36(2)(aa) respectively. The Tribunal also considered whether any effective protection measures were available to the applicant in Malaysia and whether she could reasonably relocate within Malaysia to avoid harm.

The Tribunal found that the applicant had not established a well-founded fear of persecution. While acknowledging the applicant's homosexuality and the Malaysian state's non-acceptance of it, the Tribunal concluded that the applicant had not demonstrated a real chance of persecution. The Tribunal noted the absence of prior harm and the existence of a well-established gay community in Malaysia, suggesting that the applicant might be able to avoid persecution. Furthermore, the Tribunal considered the applicant's additional claim regarding the underground group, but found the submitted evidence, including text messages and an undated photograph, insufficient to substantiate this fear. The Tribunal also noted the lack of evidence suggesting the applicant had a right to enter and reside in a safe third country.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that she did not satisfy the criteria under section 36(2) of the Migration Act.