1611199 (Refugee)

The Administrative Appeals Tribunal considered the case of a Malaysian national seeking a protection visa. The applicant claimed to fear persecution upon return to Malaysia due to his homosexual identity and his intention to transition gender. He asserted that his family, the Islamic community, and Malaysian authorities would not accept him, leading to potential punishment, rehabilitation orders, or imprisonment, and that his sexual orientation would prevent him from obtaining employment.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, which concerns a well-founded fear of persecution, or alternatively, under section 36(2)(aa), which relates to complementary protection grounds where there is a real risk of significant harm. The Tribunal was required to assess the applicant's credibility, consider relevant country information, and determine if he had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or if he faced significant harm upon return to Malaysia.

The Tribunal found that the applicant was a Malaysian citizen and that Malaysia was the appropriate country of reference for assessing his claims. It also confirmed that the applicant did not have a right to reside in a third country. Crucially, the Tribunal concluded that the applicant satisfied the criteria under section 36(2)(a) of the Migration Act, finding he had a well-founded fear of persecution.

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