1607694 (Refugee)

The Administrative Appeals Tribunal considered the application of a woman seeking a protection visa. The applicant, a citizen of Malaysia, claimed she had fled her country due to abuse from her former boyfriend and threats from her family and ex-partner related to her secret homosexual relationship. She asserted that returning to Malaysia would expose her to torture or death due to past violence and societal intolerance towards homosexuality, which she feared would lead to imprisonment. The delegate for the Minister had refused the visa, finding that criminal offences against homosexuality in Malaysia were rarely applied, discrimination did not amount to significant harm, and internal relocation within Malaysia was reasonable.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically considering the grounds of persecution based on membership of a particular social group and the risk of significant harm upon removal from Australia. This involved assessing the applicant's claims of past abuse and threats in the context of Malaysian law and societal attitudes towards homosexuality, and evaluating the availability of effective protection measures within Malaysia. The Tribunal also had to consider the provisions of the *Migration Act 1958* concerning well-founded fear of persecution, significant harm, and the definition of a particular social group.

The Tribunal reasoned that while the applicant's claims regarding the infrequent application of criminal offences against homosexuality and the general level of discrimination in Malaysia were noted, these did not necessarily negate a real risk of significant harm. The Tribunal considered the applicant's specific circumstances, including the threats of death from her family and ex-partner, and the fear of imprisonment for her sexual orientation. The Tribunal ultimately found that the applicant satisfied section 36(2)(b) of the *Migration Act 1958*, which relates to being a member of the same family unit as a non-citizen in Australia who satisfies section 36(2)(a).

Accordingly, the Tribunal remitted the matter for reconsideration with the direction that the applicant satisfies section 36(2)(b) of the *Migration Act*.