1611447 (Refugee)

This matter concerned an application for a protection visa by a Malaysian national. The applicant claimed to have suffered harassment, threats, and attacks in Malaysia due to their gender identity as a female-to-male transgender person. The applicant also stated they were married against their wishes, forced into sexual relations, and experienced pregnancy, and that they now live as a man and are accepted as such in Australia. The decision under review was made by the Refugee Tribunal.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, specifically whether they had a well-founded fear of persecution for reasons of membership of a particular social group, and whether there was a real chance of serious harm in the reasonably foreseeable future if returned to Malaysia. The Tribunal also considered the definition of "significant harm" and the circumstances under which a person would not be taken to face a real risk of such harm, as well as the concept of "effective protection measures" available in a receiving country.

The Tribunal found that the applicant, who was born female but identifies as a man and has done so since childhood, provided credible and persuasive evidence of their experiences. This evidence was supported by independent country information detailing the discrimination and violence faced by transgender individuals in Malaysia, including instances of arrest, physical and sexual assault by authorities, and societal violence. The Tribunal determined that transgender people in Malaysia constitute a particular social group, and the applicant, as a transgender man attracted to women, fell within this group and relevant subsets. The Tribunal concluded that the applicant had a well-founded fear of persecution due to their membership in this social group, that the harm feared constituted serious harm involving systematic and discriminatory conduct, and that effective state protection was not available. The Tribunal also found that it would be an unreasonable modification for the applicant to conceal their gender identity to avoid harm.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criterion set out in section 36(2)(a) of the Migration Act, meaning Australia has protection obligations towards the applicant as a refugee.