1604178 (Refugee)

The Administrative Appeals Tribunal (AAT) considered an application for a protection visa made by an applicant who claimed to fear returning to Malaysia. The applicant identified as a homosexual man and asserted that he would face harm if returned to his home country due to his sexual orientation and family circumstances. The AAT was tasked with determining whether the applicant met the criteria for a protection visa.

The central legal issue before the Tribunal was whether the applicant would be a refugee within the meaning of the *Migration Act 1958* (Cth) if returned to Malaysia. This required the Tribunal to assess whether the applicant had a well-founded fear of persecution based on his membership in a particular social group, specifically homosexual men, and whether the laws and social conditions in Malaysia would expose him to such persecution. The Tribunal also considered the applicant's claims regarding family rejection and pressure to marry.

The Tribunal accepted the applicant's narrative regarding his long-term homosexual relationship and his genuine homosexual identity, despite a concurrent heterosexual relationship which the Tribunal found not to be genuine. The Tribunal noted that while homosexual acts are illegal in Malaysia, the laws are infrequently applied, and Sharia law is not enforced in the state of Sabah. Furthermore, the existence of LGBTI support groups in Malaysia was considered. Ultimately, the Tribunal concluded that the applicant had not established a well-founded fear of persecution for a Convention reason, and therefore affirmed the decision under review.