1606121 (Refugee)

The applicant, a Malaysian national, sought a protection visa in Australia. The dispute concerned whether the applicant had a well-founded fear of persecution in Malaysia due to her identity as a lesbian, particularly in light of her masculine appearance and mannerisms, which aligned with the term "pengkid" used in Malaysia. The applicant had disavowed earlier claims of disability and abuse by youths, instead focusing on her sexual orientation and the associated risks. The matter was heard by David Corrigan, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if the applicant met the criteria for a protection visa, specifically whether she had a well-founded fear of persecution under section 36(2)(a) of the Migration Act 1958 (Cth) due to her membership in a particular social group. This required assessing whether there was a real chance of persecution for reasons of her sexual orientation and gender identity, whether such persecution would involve serious harm and systematic, discriminatory conduct, and whether effective protection measures were available in Malaysia. The Tribunal also considered the complementary protection criterion under section 36(2)(aa) of the Act, which addresses the risk of significant harm if removed from Australia.

The Tribunal accepted the applicant's evidence that she is a lesbian and from a Malay Muslim background, noting her masculine appearance and mannerisms were consistent with this identity. Drawing on country information from the Department of Foreign Affairs and Trade and other reports, the Tribunal found that lesbians and "pengkid" constitute a particular social group in Malaysia, sharing an innate and fundamental characteristic that distinguishes them from society. The Tribunal noted that while laws criminalising homosexual acts are rarely enforced, government and societal attitudes, including fatwas against masculine gender expression and public criticism of LGBTI individuals, contribute to an environment of discrimination and harassment. The Tribunal concluded that the applicant faced a real chance of significant physical harassment or ill-treatment if she did not conceal her true sexual orientation or gender identity, and that such concealment would conflict with a characteristic fundamental to her identity. Furthermore, the Tribunal was not satisfied that the Malaysian state was willing or able to offer effective protection to the applicant.

Consequently, the Tribunal found that the applicant had a well-founded fear of persecution for reasons of her membership in the particular social group of lesbians or "pengkid" in Malaysia. The Tribunal was satisfied that Australia had protection obligations towards the applicant under section 36(2)(a) of the Migration Act. The matter was remitted for reconsideration with a direction that the applicant satisfies the criteria for a protection visa.