1607718 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by a Malaysian national. The applicant claimed to fear persecution upon return to Malaysia due to threats of death, physical assault, and rape, stemming from her relationship with her girlfriend. The applicant had initially applied for the visa in February 2016, which was refused by a delegate of the Minister in April 2016. The applicant subsequently sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group, as defined by the Migration Act 1958. This involved assessing whether the applicant's fear of harm in Malaysia was real and whether it was for a Convention reason, specifically membership of a particular social group. The Tribunal also considered the provisions relating to significant harm and effective protection measures under the Act.

The Tribunal reasoned that the applicant's fear of persecution was well-founded. It found that the applicant's experiences, including threats and physical assault, constituted serious harm. The Tribunal determined that the applicant belonged to a particular social group, defined by her sexual orientation and her relationship with her girlfriend, which distinguished her from the general population in Malaysia and was a fundamental aspect of her identity. The Tribunal concluded that the applicant's fear was not based on a risk faced by the population generally, and that effective protection measures were not available to her in Malaysia.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criterion under section 36(2)(a) of the Migration Act, finding that she is a refugee.