1604863 (Refugee)

This matter concerned an application for a protection visa by two applicants. The first applicant claimed to fear persecution in Malaysia due to being homosexual and transgender, citing the imposition of Sharia law criminalising gay and lesbian acts, and experiencing harassment and violence. The second applicant, identified as the first applicant's partner, did not lodge his own protection claims but his entitlement to a visa was contingent on the first applicant's application. The Administrative Appeals Tribunal (AAT) considered the applicants' claims in light of Ministerial Direction No. 56 and relevant country information.

The primary legal issue before the Tribunal was whether the first applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Alternatively, the Tribunal considered whether the applicants qualified for complementary protection under section 36(2)(aa), which applies if there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Malaysia, there is a real risk of suffering significant harm. The Tribunal also had to determine if the second applicant was a member of the same family unit as the first applicant for the purposes of section 36(2)(b)(i).

The Tribunal applied the principles of the Migration Act concerning well-founded fear of persecution and significant harm, including the definitions of torture, cruel, inhuman, or degrading treatment or punishment. It considered the applicant's claims of being homosexual and transgender, and the potential for persecution in Malaysia under Sharia law. The Tribunal also had regard to the provisions regarding membership of a particular social group and the availability of effective protection measures in a receiving country. The Tribunal found that the first applicant did not satisfy the criteria under section 36(2)(a) or (aa). However, it was satisfied that the second applicant was the partner of the first applicant and a member of the same family unit.

Consequently, the Tribunal remitted the matter for reconsideration with directions that the first named applicant satisfies section 36(2)(a) of the Migration Act, and the second named applicant satisfies section 36(2)(b)(i) on the basis of membership of the same family unit as the first named applicant. The entitlement of the second applicant to a protection visa was therefore dependent on the first applicant meeting the remaining criteria.